United States District Court, N.D. New York
UNITED STATES OF AMERICA, for the use and benefit of CHARLES T. DRISCOLL MASONRY RESTORATION, CO., INC., Plaintiff,
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, et al., Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN U.S. DISTRICT JUDGE.
Charles T. Driscoll Masonry Restoration, Co., Inc.
(“Driscoll”) commenced this action against
defendants Travelers Casualty and Surety Company of America
(“Travelers”) and Serviam Construction, LLC,
pursuant to the Miller Act, 40 U.S.C. § 3131 et
seq., and various state law causes of action. Dkt. No. 1
(“Complaint”). Presently before the Court is
Defendants' motion to dismiss or transfer and motion to
strike. Dkt. No. 10 (“Motions”); see
also Dkt. No. 10-3 (“Memorandum”); Dkt. No.
10-2 (“Orr Affidavit”). Driscoll opposes the
Motions, Dkt. No. 17 (“Response”), and Defendants
filed a reply, Dkt. No. 23 (“Reply”). For the
reasons that follow, the Court grants in part and denies in
part Defendants' Motions.
is a New York corporation whose principal place of business
is Skaneateles, New York. Compl. ¶ 3. Travelers, which
“is in the business of writing performance and payment
bonds, ” is a Connecticut corporation with a principal
place of business in Hartford, Connecticut. Id.
¶ 4. Serviam is a Pennsylvania limited liability company
whose principal place of business is Altoona, Pennsylvania.
Id. ¶ 5.
case stems from a construction project overseen by the
Department of Veterans Affairs (“VA”) in
Syracuse, New York. Id. ¶ 6. Serviam contracted
with the VA to perform work related to “the federal
project commonly known as ‘Building Facade and Parapet
Repairs.” Id. ¶ 7. On October 2, 2015,
Travelers issued Serviam a payment bond in the amount of
$2, 444, 652. Id. ¶ 8; see also Orr
Aff. Ex. 2. Then, on November 16, 2015, Serviam entered a
subcontract with Driscoll in which Driscoll agreed “to
furnish labor, materials and equipment to complete . . .
masonry and abatement work . . . for the agreed sum of $1,
080, 106.” Compl. ¶ 9; see also Orr Aff.
Ex. 1. The subcontract contains the following
clause: “The construction, interpretation, enforcement
and all other matters relating to this Subcontract and any
amendments or modifications hereto shall be governed by the
laws of the Commonwealth of Pennsylvania, and jurisdiction
and venue for any litigation arising under this Subcontract
shall lie within the appropriate court in Blair County,
Pennsylvania.” Orr Aff. Ex. 1, § 11. The
subcontract also states that Driscoll “waives the right
to trial by jury on any issues relating to this
began working on the project around July 2016. Id.
¶ 11. At some point, Serviam accused Driscoll of causing
“damage to existing roofs at . . . several project work
sites.” Id. ¶¶ 14-15. Driscoll
claims it had nothing to do with the damage. Id.
¶ 19. Nevertheless, Serviam has told Driscoll it will
back charge the cost of repairing the roofs against
Driscoll's subcontract balance, and Driscoll alleges that
the repairs will cost over $300, 000. Id.
¶¶ 16-17. Serviam has also informed Driscoll that
“it will make no further payments under the Subcontract
until the roof repairs are completed, and the total amount of
cost of the repairs has been deducted from Driscoll's
Subcontract.” Id. ¶ 18. Driscoll has
sought payment from Serviam for work valued at $932, 258.53,
but Serviam has paid only $487, 579.34. Id. ¶
20. According to Driscoll, it “has duly performed the
Subcontract, ” and “Serviam has breached the
Subcontract by failing to pay Driscoll the amount due under
the Subcontract.” Id. ¶¶ 24-25.
began this action on April 25, 2017. Compl. It brings five
causes of action: breach of contract and quantum meruit
against Serviam, id. ¶¶ 27-35, a Miller
Act claim against Travelers, id. ¶¶ 36-41,
a request for attorney's fees, id. ¶¶
42-44, and a claim under 48 C.F.R. § 52.232-27, which is
titled “Prompt Payment for Construction Contracts,
” id. ¶¶ 45-47. Driscoll seeks $451,
614.49 plus prejudgment interest in damages. Id.
pointing to the forum selection clause quoted above, ask the
Court to transfer this case to the Western District of
Pennsylvania. Mem. at 3-6. They concede that there is no federal
courthouse in Blair County, Pennsylvania, but they note that
there is such a courthouse in Johnstown, a city in Cambria
County, which is “adjacent to Blair County.”
Id. at 6. Thus, Defendants argue, transferring this
case to the Western District of Pennsylvania would best
effectuate the parties' intent. Id. Defendants
also seek to strike Driscoll's jury demand on the ground
that Driscoll agreed to waive its right to a jury trial in
the subcontract. Id. at 6-7.
to Driscoll, the Court cannot enforce the forum selection
clause because the Miller Act provides for exclusive federal
jurisdiction, and the clause mandates venue in a county in
which no federal courthouse is located. Resp. at 2-4. Since
the clause thus requires this case to be heard in state
court, the argument goes, it is unenforceable. Id.
at 4. Driscoll also claims that Travelers, as a nonsignatory
to the subcontract, cannot enforce either the forum selection
clause or the jury waiver. Id. at 7-10.
The Forum Selection Clause
assessing a motion to transfer on the basis of a
forum-selection clause, a court must first determine whether
the forum-selection clause is valid and enforceable.”
Vulcan Capital Corp. v. Miller Energy Res.,
Inc., No. 13-CV-8751, 2014 WL 4384159, at *2 (S.D.N.Y.
Sept. 4, 2014). “The enforceability of forum-selection
clauses is determined by federal law, while interpretive
questions going to their ‘meaning and scope'
‘are resolved under the substantive law designated in