Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States ex rel. El Paso Glass Co. Inc. v. David Boland, Inc.

United States District Court, D. Colorado

March 30, 2018

DAVID BOLAND, INC., a Florida corporation, and WESTERN SURETY COMPANY, a South Dakota corporation, Defendants.



         This matter is before the Court on Defendants' Motion to Dismiss the Amended Complaint or Alternatively to Stay this Action. (Doc. # 10.) For the following reasons, the Court grants Defendants' request for a stay pending the parties' completion of their contractually-mandated mediation procedures.

         I. BACKGROUND

         On August 29, 2017, Plaintiff El Paso Glass Company, Inc. commenced this action bringing Miller Act and breach of contract claims against Defendants David Boland, Inc. and Western Surety Company (Defendants). Plaintiff served as the subcontractor on a construction project for which Boland, Inc. was the general contractor. Plaintiff generally contends that Defendants owe Plaintiff $40, 000.00 for work that Plaintiff performed in accordance with the parties' Subcontract Agreement (the Subcontract). Defendants dispute Plaintiff's claims, contending that Defendants are lawfully withholding payment in part because Plaintiff caused significant property damage to the construction project, costing approximately $80, 000.00.

         On October 18, 2017, Defendants filed a motion to either dismiss Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(6) or to stay this action on the grounds that the parties have yet to engage in mediation as required by the Subcontract. (Doc. # 10.) Plaintiff does not dispute that it failed to engage in mediation prior to filing this lawsuit but nonetheless objects to a dismissal or stay of this action. (Doc. # 18.)


         The Court has “broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citation omitted). In deciding whether a stay should be granted, the Court is guided by the factors of judicial economy and convenience for the Court, for counsel, and for the parties. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). The decision calls for the exercise of sound judgment, weighing competing interests and maintaining an even balance. Commodity Futures Trading Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1483 (10th Cir. 1983); see also Kansas City So. R. Co. v. United States, 282 U.S. 760, 763 (1931).

         In their motion, Defendants argue that the parties' Subcontract expressly requires Plaintiff's claims be submitted to mediation procedures before initiating suit and provides for a stay of all litigation against Defendants until completion of those procedures.

         The Subcontract states in relevant part:

Any claim arising out of or related to the Subcontract Agreement, other than those subject to Paragraph 13A, above, shall be submitted to the Contractor for an initial decision in its sole discretion. Thereafter, should Subcontractor disagree with the Contractor's decision, such claim shall be subject to non-binding mediation, to be held in Orange County, Florida, as a condition precedent to the institution of legal or equitable proceedings by either party. . . . No legal or equitable proceeding may be filed until the conclusion of the mediation process and the Subcontractor agrees that it will stay any such proceeding that is instituted until the completion of mediation.

(Doc. # 10-1 at 7.) The Contract further provides that

If the Prime Contract incorporated herein is one for which the Contractor has provided any bond(s) pursuant to 40 U.S.C. § 270a, the “Miller Act, ” . . . then the Subcontractor expressly agrees to stay any action or claim under this Subcontract Agreement against the Contractor and against the Contractor's surety and its Payment Bond and Performance Bond pending the complete and final resolution of . . . the Subcontract Agreement's mediation procedure, as required by Paragraph 13, above.

         The Court finds these provisions clearly and unequivocally state that an attempt at mediation, among other things, is required before commencing an action in this Court. See Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1242 (11th Cir. 2009) (Under Florida law, “[m]ediation clauses, like arbitration clauses, are contractual in nature, and construction of such provisions is a matter of contract interpretation.”); 3-J Hospitality, LLC v. Big Time Design, Inc., 09-cv-61077, 2009 WL 3586830, *1 (S.D. Fla. Oct. 27, 2009) (“In interpreting a contract under Florida law, [courts] give effect to the plain language of contracts when that language is clear and unambiguous.”).[1] The Court also finds that the Subcontract expressly provides that this action must be stayed pending the conclusion of the outlined mediation procedures.

         It is undisputed that no mediation has occurred or even been attempted in this case. Indeed, Plaintiff does not dispute the validity of these provisions and acknowledges that they require mediation and the imposition of a consequent stay. Plaintiff instead argues that Defendants have waived the Subcontract's mediation requirements and/or that those requirements are futile. In support of its contentions, Plaintiff merely highlights instances where Defendants disputed Plaintiff's requests for payment or did not take Plaintiff's calls. (Doc. ## 18-2, 18-3, 18-4.) ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.