United States ex rel. McAmis Industries of Oregon, Inc. v. M. Cutter Co.

On April 10, 1995 McAmis Industries of Oregon, Inc. brought suit under the Miller Act against M. Cutter Company for a sum due for the use of its two barges by Cutter. The barges were actually returned by Cutter on June 29,1995. The district court awarded McAmis not only the sum due on April 10, 1995 but also the sum due for the rent of the barges through June 29,1995.

On this appeal Cutter contends that under the Miller Act suit may only be brought for the amount “unpaid at the time of institution of such suit,” 40 U.S.C. § 270b, and that, consequently, there could be no award for the period between April 10 and June 29. This contention presents a variant of the argument considered and rejected by us over 30 years ago in Security Insurance Company of New Haven v. United States ex rel. Haydis, 338 F.2d 444 (9th Cir.1964).

In Security Insurance a Miller Act complaint was filed less than 90 days after the last day on which material was supplied, so that the action was premature under the 90 day requirement of 40 U.S.C. § 270b(a). The plaintiff filed a supplementary complaint more than one year after the date on which the last material was supplied, thereby ap *441 parently being…