United States District Court, N.D. Illinois, Western Division
G. REINHARD, UNITED STATES DISTRICT COURT JUDGE
reasons stated below, plaintiff's motion  for
reconsideration is denied.
Sunlee Development, LLC, moves  for reconsideration of a
portion of the court's order  denying
plaintiff's motion for summary judgment and granting in
part and denying in part Liberty Mutual Insurance
Company's motion for summary judgment on plaintiff's
action under the Miller Act. Plaintiff is not seeking a
reversal of the denial of its motion but rather asks the
court, going forward, to assign to the defendant the burden
of persuasion on the issue of the timeliness of plaintiff
bringing this action.
Miller Act states that an action “must be brought no
later than one year after the day on which the last of the
labor was performed or material was supplied by the person
bringing the action.” 40 U.S.C. § 3133(b)(4). The
parties had not addressed in their summary judgment briefs
who bore the burden of persuasion on this issue and the
court, in conducting its summary judgment analysis, placed
the burden on plaintiff based on the court's
understanding that bringing suit “within the prescribed
time is a condition precedent to the right to maintain the
action.” U.S. for Use and Benefit of PRN
Associates, Inc. v. K & S Enterprises, Inc., No.
1:04-cv-0470-DFH-JMS, 2007 WL 925267, *4 (S.D. Ind. March 27,
2007) (Hamilton, J.), quoting, U.S. for Use and Benefit
of Material Service Division of General Dynamics Corp. v.
Home Indemnity Co., 489 F.2d 1004, 1005 (7th
Cir. 1973). The court concluded there was a genuine issue of
material fact as to the date labor was last supplied by
plaintiff and, thus, denied both parties summary judgment on
the timeliness issue. This genuine issue of material fact
exists regardless which party bears the burden of persuasion
on it so the summary judgment denials stand whether the
burden is the defendant's or the plaintiff's. The
issue, however, is relevant to future proceedings in this
argues the burden of persuasion is on defendant because the
statute of limitations is an affirmative defense on which the
defendant bears the burden of persuasion. Plaintiff contends
Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428 (2011) and its progeny have undercut the PRN
opinion. Defendant claims that PRN was based on two court of
appeals cases that have been repudiated under
Henderson, that Supreme Court and Seventh Circuit
decisions issued after PRN are clear that
limitations periods are to be considered affirmative defenses
unless there is clear indication otherwise in the statute,
and that nothing in the language of the Miller Act would turn
its “run of the mill” statute of limitations into
a jurisdictional statute. Therefore, according to plaintiff,
timeliness under the Miller Act is not a condition precedent
but instead an affirmative defense.
short answer to plaintiff's argument is that U.S. for
Use and Benefit of Material Service Division of General
Dynamics Corp. v. Home Indemnity Co., 489 F.2d 1004,
1005 (7thCir. 1973) (upon which PRN
relied) says otherwise and it is controlling precedent for
the court. “The statute is remedial and to be liberally
construed, but the giving of notice and bringing of suit
within the prescribed time is a condition precedent to the
right to maintain the action.” Id. General
Dynamics has not been overruled. When PRN was
decided, Judge Hamilton stated “[c]ontrolling Seventh
Circuit precedent treats the one-year time limit under the
Miller Act as a condition precedent to suit, so that the
burden is on the plaintiff to plead and prove compliance with
the time limit.” PRN, 2007 WL 925267 at *4.
The “controlling Seventh Circuit precedent” cited
in PRN was General Dynamics. It remains
raises a number of arguments about the continuing vitality of
cases cited in PRN but only the vitality of
General Dynamics is relevant. “The doctrine of
stare decisis binds this court to follow the
decisions of the Supreme Court and of the Seventh Circuit
unless events subsequent to the last decision by the higher
court make it almost certain that these courts would overrule
themselves if given the opportunity.” U.S. v.
Collins, 140 F.Supp.3d 786, 790 (N.D. Ind. 2015)
(internal quotation marks and citations omitted). Since
General Dynamics has not been overruled the court
must follow it unless it is “almost certain” the
Seventh Circuit would overrule it if given the opportunity to
do so based on events subsequent to its entry.
argues, based on Sebelius v. Auburn Regional Medical
Center, U.S., 133 S.Ct. 817 (2013), Henderson ex
rel. Henderson v. Shinseki, 562 U.S. 428 (2011),
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006),
Miller v. FDIC, 738 F.3d 836 (7th Cir.
2013) and McReynolds v. Merrill, Lynch, Pierce, Fenner,
& Smith, Inc., 672 F.3d 482 (7th Cir.
2012), that, absent a clear Congressional statement,
statutory time prescriptions are not jurisdictional. That is
to say, the failure to meet the time prescription does not
affect the court's ability to adjudicate the claim.
However, there is no dispute here about the court's
jurisdiction. If the evidence shows plaintiff did not timely
file this action, the court does not lose jurisdiction over
the case and dismiss it for lack of jurisdiction. Cases
dealing with the question of jurisdiction are not relevant to
also cites several cases, notably U.S. ex rel.Air Control
Technologies, Inc. v. Pre Con Industries, Inc., 720 F.3d
1174 (9th Cir. 2013) which, in discussing whether
the Miller Act's time limit is jurisdictional or
non-jurisdictional, refer to the limit being a
“run-of-the mill statute of limitations”. The
following quote from Air Control is illustrative:
“A proper analysis of the Miller Act's statute of
limitations makes clear that it is a claim-processing rule,
not a jurisdictional requirement. As a statute of
limitations, § 3133(b)(4) of the Miller Act is cloaked
in a presumption of non jurisdictional status that may be
stripped only if there is an exceptional reason for doing so,
and the relevant factors all indicate there is nothing
exceptional about § 3133(b)(4). It is, instead, a
run-of-the mill statute of limitations. For one, §
3133(b)(4) does not speak in jurisdictional terms. Neither
the word ‘courts' nor ‘jurisdiction'
appears in the section, which implies that § 3133(b)(4)
is a restriction on the rights of plaintiffs to bring suit,
rather than a limitation on the power of the federal courts
to hear the suit.” Id., at 1177 (internal
citations and quotation marks omitted).
concludes from the use of the term “run-of-the mill
statute of limitations” that these cases suggest
defendant bears the burden of persuasion on the timeliness
issue. This reads too much into the use of this language.
What was being decided was not assignment of the burden of
persuasion, but “that § 3133(b)(4) is a
restriction on the rights of plaintiffs to bring suit, rather
than a limitation on the power of the federal courts to hear
the suit.” Id., The court cannot say that ...