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UNITED STATES EX REL. AUTOMATIC ELEVATOR CO. v. LO

January 26, 1996

UNITED STATES OF AMERICA ex rel. AUTOMATIC ELEVATOR CO., INC., etc., Plaintiff,
v.
LORI CONSTRUCTION, et al., Defendants.



The opinion of the court was delivered by: SHADUR

 This action under the Miller Act (the "Act," 40 U.S.C. §§ 270a-270f *fn1" ) was brought by Automatic Elevator Co. ("Automatic") against Lori Construction, Inc. ("Lori") and Intercargo Insurance Company ("Intercargo,") the issuer of the payment bond on which Automatic sues). Both defendants have moved for dismissal, seeking that relief alternatively under Fed. R. Civ. P. ("Rule") 12(b)(1) and Rule 12(b)(6). For the reasons stated in this memorandum opinion and order, the motion to dismiss (though inappropriately labeled) is granted and this action is dismissed.

 Procedural Posture

 Because the motion under consideration is based on the claimed untimeliness of this action, it could be characterized as jurisdictional in nature only if the time requirement in Section 270b(b) were viewed as an element of the claim itself rather than as a statute of limitations. There was to be sure some earlier case law, dating back two decades or more, that took that position (see, e.g., United States ex rel. Celanese Coatings Co. v. Gullard, 504 F.2d 466, 468-69 (9th Cir. 1974) and cases cited there). But the bulk of the cases--particularly the more recent authority--view the one-year restriction on suit as a limitations period instead, with the possibility that a failure to meet that timetable may be excused under the principles of equitable tolling or the like (see United States ex rel. Kirchdorfer v. M.J. Kelley Corp., 995 F.2d 656, 659 (6th Cir. 1993) and cases cited there). Hence this Court views Rule 12(b)(1) as not being in play here.

 As for Rule 12(b)(6), conventional wisdom limits a court's consideration to the well-pleaded allegations of the complaint before it (see, e.g., Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). But in this case the key to the motion to dismiss is in a document dehors Automatic's Complaint, so that Rule 12(b)(6) is also not in play.

 What saves the current dismissal analysis is that there is no dispute between the parties over the authenticity or relevance of the critical document, nor does either side's submission object to this Court's consideration of that document or identify any disputed issue of material fact. In effect, then, this Court is in a position to resolve the issues as a matter of law--something akin to a Rule 56 ruling. Hence the discussion will first set out Automatic's allegations (which will be accepted as true for present purposes), with any other relevant facts then being referred to later in the analysis.

 Automatic's Complaint

 In 1992 Lori entered into a contract with the United States Government for elevator repair work at the VA Lakeside Medical Center (Complaint P5), and Intercargo executed a payment bond on the contract (id. P6). In July 1992 Lori and Automatic entered into a written subcontract (the "Subcontract") under which Automatic agreed to furnish labor and materials to replace a freight elevator with a new elevator at a contract price of $ 56,560 (id. P7).

 Lori later asked that Automatic perform additional work beyond the scope of the Subcontract (id. P8). Automatic did the work (id. P9) and says that Lori owes it $ 9,197 (id. P10).

 Act's Statute of Limitations

 Section 270b(b) states (emphasis added):

 
Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by him.

 Defendants urge that the day on which the limitations clock began to tick was July 30, 1994, in confirmation of which they have tendered an Acceptance of Equipment form submitted by Automatic and signed by Lori on that date (D. Motion Ex. B). On that premise Automatic's filing of this action on November 29, 1995 came some four months after the Act had already barred the claim.

 Automatic does not quarrel with the July 30 completion date--after all, it itself asked Lori to confirm its Acceptance of Equipment by executing the form that designated that date. Instead Automatic says that on December 15, 1994 it performed ...


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