United States ex rel. Henderson v. Nucon Construction Corp.

The district court dismissed a subcontractor’s Miller Act suit for faüure to join the general contractor-as an indispensable party. The court also awarded attorney fees to the defendants. Because we hold the general contractor is not an indispensable party in a Miller Act suit by a subcontractor-against the Miller Act surety, we reverse the dismissal, vacate the award of attorney fees, and remand for further proceedings.

FACTS

Centric-Jones, a Colorado limited partnership, was the general contractor on a contract with the Federal Bureau of Reclamation to construct a portion of a federal project in Arizona. As required by' the Miller Act, 40 U.S.C. §§ 270a-d, Centric-Jones obtained a performance bond from Aetna Casualty and Surety Company (Aetna). Centric-Jones sübco'ntracted excavation work to the Hendersons (collectively “Henderson”).

Each party to the subcontract disputed performance by the other. Henderson brought suit in the United States District Court seeking a recovery under the Miller Act. He named and properly served the surety, Aetna, as one of the defendants. He also named and served “Nucon Construction Corp. d/b/a Centric-Jones Co.” as another defendant. The…