Opinion
No. CV-11-8012-PCT-FJM.
August 22, 2011
ORDER
The United States, through the Department of Agriculture, entered into a contract with defendant Montana Builders, LLC, for a construction project at Oak Creek Complex-Pine Flat Campground (the "Project"). Montana Builders, as the general contractor on the Project and pursuant to the Miller Act, 40 U.S.C. § 3131(b)(2), furnished a payment bond to the United States. Defendant Ronald Wilson is surety on the payment bond. Montana Builders contracted with defendant Grady's Quality Excavating as subcontractor on the Project. Grady's in turn contracted with plaintiff Cemex Construction Materials South, LLC, for the purchase of construction materials. Cemex has now filed this action against Grady and its principals for their failure to pay Cemex for materials in the principal amount of $48,465.58. Pursuant to the Miller Act, Cemex also named as defendants Montana Builders and its surety under the payment bond. See 40 U.S.C. § 3133(b)(2).
The court has before it the United States of America for the Use and Benefit of Cemex Construction Materials South, LLC's ("Cemex") application for entry of default judgment against Montana Builders, LLC, and Ronald F. Wilson (doc. 37). Also before us is Cemex's motion for attorney's fees in the amount of $14,213.51 (doc. 39).
Cemex served copies of the summons and complaint on defendant Montana Builders on February 13, 2011, and on defendant Ronald F. Wilson on March 27, 2011. Both Montana Builders and Wilson have failed to plead or otherwise defend within the time prescribed by Rule 12(a)(1), Fed.R.Civ.P. The clerk entered default against these defendants in favor of Cemex on June 8, 2011. Cemex now seeks entry of default judgment and contends that its claims against Montana Builders and Ronald Wilson is for a sum certain in the principal amount of $48,465.58, plus interest at the legal rate of 10% per annum from the date payment was due until paid in full (doc. 37 at 2). Cemex's claim is sufficiently supported by affidavit (doc. 27, ex. A). Therefore, IT IS ORDERED GRANTING Cemex's motion for entry of default judgment in the amount of $48,465.58, plus interest at the legal rate of 10% per annum (doc. 37).
Cemex also seeks attorney's fees in the amount of $14,213.51 pursuant to A.R.S. § 12-341.01 and the Miller Act (doc. 39). Other than to cite the two statutes, however, Cemex does not explain its eligibility for recovery of fees.
Attorney's fees are not available under the Miller Act unless expressly provided for by the terms of the direct contract between the parties or in the Miller Act bond itself. United States v. ex rel. Reed v. Callahan, 884 F.2d 1180, 1185 (9th Cir. 1989). Moreover, fees are not available under A.R.S. § 12-341.01 in the absence of a contractual relationship. Ayres v. Red Cloud Mills, Inc., 167 Ariz. 474, 481, 808 P.2d 1226, 1233 (Ct. App. 1990). Cemex had no contractual relationship with Montana Builders or Ronald Wilson and the payment bond does not provide for attorney's fees. See Complaint ex. A. Because Cemex has failed to establish any theory to support its claim for attorney's fees against Montana Builders or Wilson, Cemex's motion for attorney's fees is denied (doc. 39).
IT IS ORDERED GRANTING Cemex's motion for entry of default judgment in the amount of $48,465.58, plus interest at the legal rate of 10% per annum (doc. 37).
IT IS ORDERED DENYING Cemex's motion for attorney's fees (doc. 39).