The opinion of the court was delivered by: NORGLE
CHARLES R. NORGLE, SR., District Judge:
Before the court is the motion to dismiss filed by Defendants Bradley Construction Company ("Bradley") and American Casualty Company of Reading, Pennsylvania ("American Casualty"). For the following reasons, the court grants the motion with prejudice.
The United States General Services Administration ("GSA") hired Bradley to install a new roof for one of the GSA buildings in Chicago, Illinois. Bradley contracted with American Casualty for its surety and with Defendant Custom Professional Roofing Services, Inc. ("Custom") as a subcontractor. Custom then contracted with Plaintiff American Builders & Contractors Supply Company, Inc. ("ABC") to supply the necessary materials.
According to ABC's Complaint, ABC shipped to Custom various roofing supplies on the following dates: October 10, 1995, October 22, 1995, November 22, 1995, and January 11, 1996. In its brief in response to the motion sub judice, ABC made a judicial admission
that Custom paid for the supplies sent on the latter date, January 11, 1996, leaving the supplies sent on the former three dates unpaid. On April 1, 1996, ABC served upon Bradley and American Casualty a notice of its bond claim for the unpaid material in the amount of $ 47,293.70. On April 4, 1996, ABC amended the bond notice to show a higher balance due -- $ 70,187.75. Finally, on October 18, 1996, ABC filed the instant lawsuit under the Miller Act, 40 U.S.C. §§ 270a-270d, to collect the unpaid balance. Bradley and American Casualty now move the court to dismiss them as defendants to the Miller Act Complaint for ABC's failure to serve timely notice.
Because ABC supplied materials to Custom, a subcontractor, ABC was a sub-subcontractor. See J.W. Bateson, Inc. v. United States ex rel. Bd. of Trustees of the Nat'l Auto. Sprinkler Ind. Pension Fund, 434 U.S. 586, 591, 55 L. Ed. 2d 50, 98 S. Ct. 873 (1978). By definition of its status as a sub-subcontractor, ABC did not have contractual privity with Bradley or American Casualty, the general contractor and surety, respectively. As such, ABC could not sue Bradley or American Casualty for breach of contract. Nor could ABC recover its losses under a state law mechanics' lien action; state law lien rights do not attach to material suppliers of a federal project. F.D. Rich Co., Inc. v. United States for the use of Indus. Lumber Co., Inc., 417 U.S. 116, 94 S. Ct. 2157, 40 L. Ed. 2d 703 (1974). In comes the Miller Act, a statute Congress enacted to protect entities like ABC in similar situations.
The Miller Act provides a sub-subcontractor with a vehicle for recovery (from a general contractor's payment bond) of the amount the subcontractor should have paid it for the furnished materials. However, in order for ABC to sue its general contractor and the surety for Custom's failure to pay for the furnished materials used in the federal project, ABC must first give written notice to Bradley and American Casualty of the bond claim. The written notice must be made in accordance with § 270b(a) of the Miller Act, which states in relevant part,
Any person having direct contractual relationship with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made.
In support of the instant motion, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), Bradley and American Casualty argue that the ninety day notice period began to run from the date of the last unpaid shipment included within ABC's notice of bond claim. In opposition, ABC contends that the notice period began to run from the date it last furnished materials to Custom, regardless of whether Custom paid for the materials.
At the outset, the court is aware that "the Miller Act should receive a liberal construction to effectuate its protective purposes." United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 1 L. Ed. 2d 776, 77 S. Ct. 793 (1957). But the court is also aware that such "liberality" goes to the remedial provisions of the statute, not the notice provisions. United States ex rel. General Dynamics Corp. v. Home Indem. Co., 489 F.2d 1004, 1005 (7th Cir. 1973). Instead, the ninety day notice requirement is a strict "condition precedent." See id.; see also Pepper Burns Insulation. Inc. v. Artco Corp., 970 F.2d 1340, 1343 (4th Cir. 1992), United States ex rel. Honeywell v. A & L Mechanical Contractors, 677 F.2d 383, 386 (4th Cir. 1982), United States ex rel. John D. Ahern Co., Inc. v. J.F. White Contracting Co., 649 F.2d 29, 31 (1st Cir. 1981). Thus, were the court to find that ABC did not serve timely notice of its bond claim, the Miller Act would compel it to dismiss the case as against the general contractor and the surety for ABC's failure to satisfy a requisite condition. As will be discussed below, that is exactly what the court finds.
The parties agree that the United States Court of Appeals for the Seventh Circuit has not spoken on the instant issue. However, though unaided by superior court guidance, the court need look no further than the plain ...