L.W. MATTESON, INC., Plaintiff,
SEVENSON ENVIRONMENTAL SERVICES, INC., Defendant.
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #100.
Currently before the Court is plaintiff L.W. Matteson, Inc.'s ("Matteson's"), motion, pursuant to Rule 56(g) of the Federal Rules of Civil Procedure, seeking a declaration of issues remaining for determination at trial. Dkt. #105. Specifically, Matteson seeks a declaration that: (1) the only remaining factual issue concerns the number of 100% pay time hours; (2) if any 100% pay time hours were charged when no material was moving through the line, Matteson is still entitled to receive 70% pay time for such hours; (3) Matteson is entitled to 12% interest on the unpaid balance of hours; and (4) defendant Sevenson Environmental Services, Inc.'s ("Sevenson's"), recent payment of $2, 650, 000 is applicable first to interest and then to principal. Dkt. #105.
Sevenson opposes the motion in its entirety. Dkt. #117. Specifically, Sevenson argues that: (1) Matteson has not submitted evidence in admissible form to establish that it is entitled to compensation for those instances in which it billed Sevenson at either the 70% or the 40% pay rates; (2) plaintiff is not necessarily entitled to receive 70% pay when water was being pumped, but is only entitled to compensation at the 70% rate if it was performing tasks specified in the purchase order; (3) Section 756-a of New York's General Business Law does not apply because the Tennessee Valley Authority ("TVA"), is a public authority and because Sevenson afforded Matteson timely and proper notice of its disapproval of Matteson's invoices; and (4) Sevenson's payment should be applied to the principal because the contract does not call for interest to be assessed to unpaid invoices. Dkt. #117.
In reply, Matteson argues that: (1) Sevenson admitted that it verified the hours and pay categories contained in the invoices and has only challenged the number of hours charged at 100% on the ground that the dredge may have been pumping water rather than material during some of these hours; (2) because the purchase order is clear that Matteson is entitled to some percentage of payment except in the event of operating repairs and mechanical breakdowns in excess of two hours, Matteson is entitled to 70% payment if the pump was operating but not moving material; (3) the TVA is not exempt from Section 756-a of New York's General Business Law and Sevenson failed to plead good faith and reasonable conduct as an affirmative defense and any attempt to raise the issue now would be futile given that Sevenson unreasonably substituted a payment schedule based on production; and (4) case law is clear that payments are first applied to interest and then to principal. Dkt. #132.
Rule 56(g) of the Federal Rules of Civil Procedure, as amended in 2010, provides that
If the court does not grant all the relief requested by the motion [for summary judgment], it may enter an order stating any material fact - including an item of damages or other relief - that is not genuinely in dispute and treating the fact as established in the case.
The Advisory Committee notes opine that once the Court has discharged its duty to determine whether summary judgment is appropriate with respect to each claim, defense, or part of a claim of defense identified in the motion, "the court may decide whether to apply the summary-judgment standard to dispose of a material fact that is not genuinely in dispute." However,
If it is readily apparent that the court cannot grant all the relief requested by the motion, it may properly decide that the cost of determining whether some potential fact disputes may be eliminated by summary disposition is greater than the cost of resolving those disputes by other means, including trial. Even if the court believes that a fact is not genuinely in dispute it may refrain from ordering that the fact be treated as established. The court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event.
As to the first issue, the Court notes that in response to Matteson's Statement of Material Facts, Sevenson stated that it "has never admitted that Matteson has earned the amounts plaintiff claims is due." Dkt. #44, ¶ 28. However, Sevenson has admitted owing $625, 000 for mobilization and $310, 000 for demobilization of the dredge (Dkt. #44, ¶ 25); $55, 000 for mobilization of the booster pump (Dkt. #44, ¶ 26); and $10, 122.30 for purchase of a 24 inch pipeline. Dkt. #44, ¶ 27. Moreover, with respect to dredge and booster pump rental hours, Sevenson stated that "Sevenson and Matteson are in disagreement as to the number of hours attributable to each category of payment, with the exception of the hours of downtime due to the weather (40% rate)." Dkt. #44, ¶ 44. Accordingly, Matteson's invoice of $82, 872.80 for 40% pay time is established. That leaves the following items set forth in Matteson's Statement of Material Facts at issue:
100% Pay time 1, 709.96 hours $3, 590, 916.00 70% Pay time 776.01 ...