B. Additional Persuasive Case Law From Other Circuits
Though the court needs no further authority other than the plain language and unequivocal direction of the Miller Act, the court is aware of persuasive authority in support of its finding supra. In United States for the use of DuKane Corp. v. United States Fidelity & Guar. Co., 422 F.2d 597 (4th Cir. 1970), the litigants presented a similar scenario to the United States Court of Appeals for the Fourth Circuit, and the Fourth Circuit made a similar dispositive finding. In DuKane, the sub-subcontractor gave the general contractor of a federal project notice of unpaid materials it furnished on December 29, 1965. The notice was not given until May 6, 1966, much more than ninety days after December 29, 1965. The Fourth Circuit held, "It is true that certain materials were furnished by DuKane on February 8, 1966, and March 4, 1966, but both of these orders were C.O.D., were paid for on delivery, and, therefore, were not part of the materials for which [the] claim is made within the terms and provisions of the Miller Act." Id. at 600 (emphasis added). The appellate court went on to find that the ninety day notice period began to run on the date of the last unpaid shipment, and that subsequent paid-for shipments did not result in a tolling of the ninety day time period. Id. The United States Courts of Appeals for the Fifth and Tenth Circuits agreed with the Fourth Circuit in Harris Paint Co. v. Seaboard Surety Co., 437 F.2d 37 (5th Cir. 1971) and United States for the use of Olmsted Elec., Inc. v. Neosho Constr. Co., Inc., 599 F.2d 930 (10th Cir. 1979). As such, the Fourth, Fifth, and Tenth Circuits concur with this court's holding.
The cases to which ABC cites for the proposition "that a subsequent shipment of materials can toll the 90 day time requirements if the material were supplied as part of the original contract and were necessary for completion of the job," United States for the use of Georgia Elec. Supply v. U.S. Fidelity & Guar. Co., 656 F.2d 993 (5th Cir. 1981), Austin v. Western Elec. Co., 337 F.2d 568 (9th Cir. 1964), and United States ex rel. General Elec. Co. v. Gunnar I. Johnson & Son, Inc., 310 F.2d 899 (8th Cir. 1963), are easily distinguishable. Those cases involved subsequent unpaid shipments. However, here, the January 11, 1996 was a paid shipment and, as noted in the discussion supra, paid shipments do not extend the ninety time period. The court notes that the November 22, 1995, unpaid shipment did, however, toll the ninety day notice period as to the October 11, 1995, and October 22, 1995, unpaid shipments (to ABC's benefit).
Finally, the court addresses what ABC intimates is an inequitable result of a strict enforcement of the notice requirement. ABC contends that under "the DuKane analysis," which the court adopts by the issuance of this Opinion and Order, "a debtor can simply pay off all the shipments which are within 90 days due, thus precluding bond recovery on shipments which are over 90 days past due." The court, Congress (by the passage of § 270b(a)), and the Tenth Circuit agree with ABC -- assuming that the furnisher of materials neglected to give timely notice of a bond claim regarding the shipments over ninety days past due. In fact, the Tenth Circuit rejected that very argument in Olmsted Elec., 599 F.2d at 930 ("the trial court reasoned that it was unfair to allow [the Miller Act defendant] 'to wipe out an entire year's worth of Miller Act claims simply by paying the tab' on [a subsequent] delivery"), by noting that the Miller Act defendant did not, in any way, mislead, deceive or manipulate the plaintiff "to defeat the Miller Act claim." Id. The court reminds ABC that notwithstanding the untimely notice, the debtor, Custom, remains contractually liable for the past due payments. ABC still may recover the balance due, but may not derive that recovery from the surety bond.
C. Other Persuasive Authority
In addition to the above case law, two publications support the court's finding. To wit, the American Jurisprudence 2d states, "The time period [for serving the Miller Act notice] is measured from the last date on which unpaid-for materials were delivered . . . ." 17 Am. Jur. 2d Contractor's Bonds § 258 (1990) (emphasis added). Further, Chapter Seven of the Illinois Institute of Continuing Legal Education's book on Illinois Mechanics' Liens, which is titled "Bond Claims: Public and Private," states,
Before commencing [a Miller Act] action, any sub-subcontractor or materialman having no contractual relationship with the contractor must give notice to the contractor within 90 days of the last furnishing of labor or materials for which he had not been paid.
Illinois Mechanics' Liens, § 7.25 at 7-27 (emphasis added). That same chapter notes the differences between measuring the § 270b(a) notice deadline and the § 270b(b) lawsuit deadline. Id. § 7.24.
As already stated, a plain reading of the Miller Act reveals that ABC should have given Bradley and American Casualty notice of its bond claim within ninety days of the last unpaid shipment of materials. Because ABC did not do so, it may not sue Bradley and American Casualty under the Miller Act. Yet, ABC is not left without a legal remedy. As discussed above, ABC may still sue the party with whom it contracted for the sale of materials: ABC may sue Custom for the alleged breach of contract. Nevertheless, Bradley and American Casualty shall not be parties to the instant lawsuit from this date forward.
Because the court dismisses Bradley and American Casualty, the general contractor and surety, respectively, the court thus lacks jurisdiction under the Miller Act, 40 U.S.C. §§ 270a - 270d. However, Custom remains a defendant to the action. According to the Complaint, Custom is an Illinois resident, ABC is a resident of both Texas and Wisconsin, and the amount in controversy is $ 70,187.75. Thus, the court has diversity jurisdiction over the remaining state law breach of contract claim, according to 28 U.S.C. § 1332 as it existed in September 19, 1996, the date ABC filed the Complaint. (Congress subsequently amended the amount in controversy requirement to $ 75,000, effective January 17, 1997.) ABC has leave to amend its Complaint to so reflect.
In sum, ABC argues that a strict application of the Miller Act notice requirements is unfair. That may be, but the court is without authority to except ABC from the strict condition precedent found within a statute authored by Congress. This court, as a member of the judicial branch of government, may not amend the Miller Act to be "fair" as perceived by ABC. Instead, this court must interpret the plain language of the statute and apply it to the cases before it. Here, the statute requires a timely notice of claim. ABC did not serve timely notice. Applying the statute to that incontrovertible fact, the court dismisses Bradley and American Casualty as defendants to this case. Such dismissal is with prejudice. The court clerk shall enter judgment in favor of Bradley and American Casualty and against ABC.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that defendants, BRADLEY CONSTRUCTION COMPANY, AMERICAN CASUALTY COMPANY OF READING PENNSYLVANIA, and PROFESSIONAL ROOFING SERVICES, INC.'s motion to dismiss is granted. Case dismissed with prejudice..
April 8, 1997