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UNITED STATES EX REL. DRAGONE BROS. v. MONIAROS CO

March 31, 1995

The UNITED STATES for the use and benefit of DRAGONE BROS. INC., Plaintiff, against MONIAROS CONTRACTING CORPORATION, CARDON BRICK CORPORATION SEABOARD SURETY COMPANY AND ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendants.


The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 Introduction

 Background

 Defendant Moniaros Contracting Corporation ("Moniaros"), a prime contractor, entered into a written contract with the United States of America, acting by and through the Federal Bureau of Prisons, for the construction of a project known as the Metropolitan Detention Center, Brooklyn, New York. Pursuant to 40 U.S.C. § 270a, Moniaros, along with Defendant sureties Seaboard Surety Company ("Seaboard") and St. Paul Fire and Marine Insurance Company ("St. Paul"), executed and delivered to the United States a payment bond for the protection of persons supplying labor and materials to the project. Defendant Cardon Brick Corporation ("Cardon"), in its capacity as a subcontractor of Moniaros, engaged Dragone Bros. Inc. ("Plaintiff" or "Dragone") to supply materials necessary for the completion of the project. During the period of March 16, 1992 to November 5, 1993, Dragone supplied specially manufactured rebar blocks, concrete blocks, masonry mix sand, mortar cement and other building materials to the Metropolitan Detention Center project.

 Plaintiff submitted its first invoice to Cardon at the end of March 1992. Plaintiff's terms of sale established that payment was due for those materials on or before April 30, 1992 (i.e., within 30 days of the end of the billing period). Plaintiff did not receive payment for this invoice until May 20, 1992. Plaintiff contacted Defendant, Moniaros, during the period of time in which payment was delinquent in order to arrange satisfaction of the invoice. Conversations with Moniaros's financial comptroller led to an oral agreement in which Moniaros, in its role as prime contractor, agreed to assume responsibility for the timely payment of all invoices submitted by Plaintiff. Accordingly, as of April 30, 1992, Plaintiff sent copies of all invoices to both Moniaros and Cardon. All terms of sale remained the same. In spite of this agreement, Plaintiff did not receive payment of the April invoice until August 6, 1992, sixty-seven days after payment was due.

 Plaintiff notified Moniaros via telephone of the unacceptable nature of these payments. Moniaros accepted responsibility for the late payments and informed Plaintiff that payment was delinquent because the United States had not paid Moniaros in a timely fashion. To alleviate the problem, Moniaros requested that Plaintiff alter its billing system so as to provide invoices on the twentieth day of each month. Moniaros requested this change so that it could include Plaintiff's invoices in its monthly requisition forms to the United States government. Despite Plaintiff's compliance with this request, Plaintiff's invoice of June 20, 1992 was not paid until September 4, 1992. Subsequent invoices were similarly delinquent, a portion of which has not been paid.

 Plaintiff commenced this action on November 12, 1993 to recover judgment for materials and labor provided to the Metropolitan Detention Center project, interest due on moneys owed on this project, as well as storage charges related to materials manufactured specifically for this project.

 Defendants move for dismissal of the complaint on two separate grounds. First, Defendants allege that Plaintiff has failed to state a cause of action upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Second, Defendants claim that pursuant to 40 U.S.C. § 270b(b), Plaintiff has failed to commence this action in a timely manner. Specifically, Defendants argue that Plaintiff failed to comply with the jurisdictional prerequisites of the Miller Act since the action was not commenced within one year of the last date materials were furnished to the project pursuant to the contract.

 Discussion

 A. Dismissal Pursuant to Rule 12(b)(6)

 A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Green v. Maraio, 722 F.2d 1013, 1015-16 (2d Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The court must accept as true all material facts well-pleaded in the complaint and must make all reasonable ...


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