Opinion
Lead Case No. 3:08cv56/MCR/MD.
April 27, 2009
ORDER
Before the court is defendants' corrected motion to dismiss Counts II through VI of plaintiff James B. Donaghey, Inc.'s amended complaint (doc. 160), to which plaintiff has responded (doc. 166).
Plaintiffs do not oppose dismissal of Counts III and IV, and defendants have withdrawn the motion as to Count V. The court therefore addresses below only Counts II and VI of defendants' motion.
As to Count II, plaintiffs' breach of contract claim, defendants' motion is DENIED. Defendants provide no authority for their argument that this claim should be dismissed on the ground there is no contract between Donaghey and two of the defendants, Continental Insurance Company and Continental Casualty Company, or alternatively, that these defendants should be dropped as parties from Count II. The case law cited by plaintiffs supports a contrary conclusion.
As to Count VI, plaintiffs' claim under the Prompt Payment Act, 31 U.S.C. § 3905, defendants' motion is GRANTED. All of the authority which the defendants have cited, or the court has located, hold there is no private right of action under the Act. See United States ex rel. Virginia Beach Mech. Servs., Inc. v. SAMCO Constr. Co., 39 F. Supp. 2d 661, 677 (E.D. Va. 1999); United States ex rel. King Mountain Gravel, LLC v. RB Constructors, LLC, 2008 WL 205295, *3-4 (D. Colo. 2008); C H Contracting of MS, LLC v. Lakeshore Engineering Servs., Inc., 2007 WL 2461017, *2 (S.D. Miss. 2007); United States ex rel. Maris Equipment Co., Inc. v. Morganti, Inc., 163 F. Supp. 2d 174, 197 (E.D.N.Y. 2001). The court is not persuaded as to any contrary argument.
Accordingly, it is ORDERED:
Defendants' corrected motion to dismiss Counts II through VI of plaintiff James B. Donaghey, Inc.'s amended complaint (doc. 160) is GRANTED in part and DENIED in part, as follows:
1. The motion is GRANTED as to Counts III, IV, and VI.
2. The motion is DENIED, as to Count II.
DONE AND ORDERED.