Free Status Report - District Court of Delaware - Delaware

Case 1:04-cv-01384-GMS
800 N. King Street Suite 300 Wilmington, DE 19801 Telephone: 302-426-1900 Facsimile: 302-426-9947

Document 19

Filed 05/17/2005

Page 1 of 3

Mark Hurford · [email protected]

Campbell & Levine, LLC
Attorneys at Law

May 17, 2005 VIA HAND DELIVERY The Honorable Gregory M. Sleet United States District Court for the District of Delaware J. Caleb Boggs Federal Building 844 King Street Room 4324, Lockbox 19 Wilmington, DE 19801 Re: United States f/b/o Earth Savers, Inc. v. PBM Construction Group, Inc. and Capitol Indemnity Corporation; CA No. 04-1384 (GMS)

Dear Judge Sleet: Please accept this correspondence as the joint status report on behalf of Earth Savers, Inc. ("Earth Savers") and Capitol Indemnity Corporation ("Capitol"), in anticipation of the Scheduling Conference set for May 24, 2005 at 10:00 a.m. As this Honorable Court is aware, PBM Construction Group, Inc. ("PBM") has not appeared in this matter and has been defaulted. Neither of the undersigned counsel have been contacted by a representative of PBM. 1. Jurisdiction and Service This Court has subject matter jurisdiction over this dispute pursuant to 40 U.S.C. Section 3131, et seq. All parties are subject to the Court's jurisdiction and there are no service issues. 2. Substance of Action In October 2001, the United States of America, through the Department of Air Force, entered into a general contract ("General Contract") with PBM to perform certain work ("Project") at the Dover Air Force Base in Dover, Delaware ("DAFB"). In April 2003, PBM entered into a subcontract ("Subcontract") with Earth Savers to perform certain landscaping work at DAFB in exchange for payment in the amount of $32,116. Pursuant to the General Contract, and 40 U.S.C. Section 3131, et seq., PBM was required to obtain a labor and material payment bond guaranteeing that PBM's subcontractors and suppliers would be paid for work they provided during the course of the Project, in the event that PBM failed or refused to make payment. Pursuant thereto, PBM, as principal, and Capitol,

{D0043833:1 }

Wilmington, Delaware · Pittsburgh, Pennsylvania

Case 1:04-cv-01384-GMS
The Honorable Gregory M. Sleet May 17,2005 Page Two

Document 19

Filed 05/17/2005

Page 2 of 3

as surety, executedand furnished a payment bond ("Bond") for the protection of all persons supplying labor, materials and equipment for the Project, including Earth Savers. The Bond at issue is valid and in full force and effect at all times relevant to this action. The Complaint was filed on October 22, 2004. Earth Saverscontendsthat the last date upon which it furnished labor, materials, or equipment for the Project was October 24,2003.1 Earth Saverscontendsthat it completed all work in a good and workmanlike manner in accordancewith the Subcontract,complied with all requirements for assertinga right to payment under the Bond and is entitled to the $32,116 due and owing under the Subcontract. Capitol contendsthat this action is barred by the applicable one-year statute of limitations. In support of this position, Capitol contendsthat contract perfoffi1anceended on May 6, 2003, and, to the extent that Earth Savershad any personnel at the site after May 6, 2003, it was for the purpose of extending the statute of limitations and not becausethere was work to be perfoffi1ed at the requestor authorization of the general contractor.
Jdentification of Issues

The factual and legal issuesgenuinely in dispute relate to the when the statute of limitations was triggered (when was the last date upon which Earth Saversfurnished labor, materials, and equipment for the Project). Capitol has also raised a waiver/estoppel issue basedupon a complaint filed by Earth Saversin the Commonwealth ofPennsylvania.

4.

Narrowing

of Issues

Earth Saversand Capitol believe that the issuesdescribed above can be narrowed by motion practice following discovery.
5
~

Earth Saversseeksa judgment in the amount of $32,116, plus interest, penalty interest, attorney's fees and the costs of this action. 6.
Amendment ofPleadings

Earth Saverswill amend paragraph9 of the complaint to revise the October 24,2004 date to October 24, 2003. Capitol will stipulate to this amendment.

See numbered paragraph 6 pertaining

to " Amendment

of Pleadings'

Wilmington,

Delaware.

Pittsburgh, Pennsylvanl

Case 1:04-cv-01384-GMS

Document 19

Filed 05/17/2005

Page 3 of 3

The Honorable Gregory M. Sleet May 17,2005 Page Thrcc

7

Joinder

of Parties

No additional parties need to be joined.
Disco~c(y

Capitol has served a set of requests for production on Earth Savers. Earth Savers and Capitol intend to complete additional written discovery and intend to schedule deposition5, including, but not limited to, a couple of individuals at DAFB.
C)

Estimated

l"rial

Length

Two days.
10.
Ju~ Trial

Earth Savers and Capitol have both requested ajury trial.
Settlement

Earth Savers and Capitol have discussed settlement and exchanged settlement offers. Referral to the rvfagistrate for mediation would be appropriate.
12, Other matters

None. Counsel for Ea.l1hSavers and Capitol have conferred about each of the above matters.

Respectfully submitted,

Respectfully submitted,

~et--

...1~

Mark T. Hur ford, Esq. Campbell & Levine, LLC

1

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Wilmington, Delaware .Pittsburgh

Penns)'lvnnil