North Star Terminal & Stevedore Co. v. Nugget Construction Inc.

MEMORANDUM *

Nugget Construction (“Nugget”) appeals the district court’s grant of summary judgment to North Star, Metco and Shoreside (“appellees”). The appellees cross-appeal the district court’s denial of attorney’s fees and application of a 4.25% simple interest rate. Because material issues of fact remain, we reverse the grant of summary judgment and remand for further proceedings.

A. Liability under the Miller Act

“Recovery under the Miller Act is limited to those who have a direct contractual relationship, express or implied, with the prime contractor or ... a subcontractor of the prime contractor.” Fid. & Deposit Co. of Maryland v. Harris, 360 F.2d 402, 408 (9th Cir.1966); see also 40 U.S.C. § 270b(a) (2001); J.W. Bateson Co. v. United States ex rel. Bd. of Trustees of Nat’l Automatic Sprinkler Indus. Pension Fund, 434 U.S. 586, 589 , 98 S.Ct. 873 , 55 L.Ed.2d 50 (1978). The appellees never entered into express contracts with Nugget, and we have already held that Spencer Rock acted not as a subcontractor but as a materialman on this project. See United States v. Nugget Constr., Inc., 19 Fed.Appx. 705 (9th Cir.2001) (unpublished memorandum decision). The appellees contend…