1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 UNITED STATES OF AMERICA FOR Case No. 22-cv-02162-VKD

THE USE OF G & G HEAVY

9 EQUIPMENT RENTALS, LLC,

ORDER TO SHOW CAUSE RE FILING

10 Plaintiff, FEE 11 v.

12 CLARK REALTY BUILDERS, LP, et al., Defendants. 13 14 On April 5, 2022, G&G Heavy Equipment Rentals, LLC (“G&G”) filed a complaint 15 against defendant Clark Realty Builders, LP and CNA Surety Corporation under the Miller Act, 16 40 U.S.C. §§ 3131-3134. Dkt. No. 1. G&G claims that the defendant contractor owes G&G an 17 outstanding balance of $168,130.00, under a contract between G&G and the defendant 18 contractor’s agent, for G&G’s provision of heavy moving equipment required for a federal 19 construction project. Id. 20 G&G has not paid the $402.00 filing fee applicable to civil cases.1 On April 7, 2022, the 21 Clerk’s Office posted a notice for payment of the filing fee. It is the Court’s understanding that 22 G&G contends that it is not required to pay the fee because G&G essentially stands in the shoes of 23 the United States when suing under the Miller Act. 24 “The Miller Act requires a general contractor on a federal construction project to furnish a 25

26 1 Earlier, G&G inadvertently filed its complaint as a miscellaneous matter and stated that its complaint would be re-filed as a civil case. See Case No. 5:22-mc-80087, Dkt. No. 3. On the 27 same day it filed the present civil action, G&G filed an Application for Refund of $49, which is 1 payment bond for the protection of all persons supplying labor and material in carrying out the 2 || work provided for in the contract,” and provides subcontractors and sub-subcontractors that are 3 not paid a right to file a suit in federal court against the payment bond. Technica LLC for the use 4 and benefit of the United States v. Carolina Cas. Ins. Co., 749 F.3d 1149, 1151-52 (9th Cir. 2014) 5 (internal quotations and citations omitted); see also 40 U.S.C. $§ 3131(b)(2), 3133(b). The Miller 6 || Act “represents a congressional effort to protect persons supplying labor and material for the 7 construction of federal public buildings in lieu of the protections they might receive under state 8 || statutes with respect to the construction of nonfederal buildings.” Technica LLC, 749 F.3d at 1152 9 || Gnternal quotations and citation omitted). 10 The Court is not aware that the civil action filing fee is waived for plaintiffs who file 11 Miller Act claims, and it is the Court’s understanding that plaintiffs who file such complaints do «12 || pay the filing fee.2 However, the Court will give G&G an opportunity to file a brief in response to

13 this order and explain, with citations to cogent authority, why it is entitled to a waiver of the filing

v 14 || fee in this case by virtue of the filing of a Miller Act complaint. G&G’s brief, not to exceed 5

15 || pages, shall be filed by April 18, 2022. 16 IT IS SO ORDERED.

17 || Dated: April 8, 2022

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VIRGINIA K. DEMARCH

20 United States Magistrate Judge 21 22 23 24 25 26 > See, e.g., Case No. 20-cv-01505-VC United States for the use and benefit of The New IEM, LLC, et al. v. Tri-Technic, Inc., et al.; Case No. 20-cv-08774-TSH United States for the use and benefit 07 of Steven Field Plumbing v. Anderson Burton Constr., Inc. et al.; Case No. 20-cv-06037-SVK United States for the use and benefit of Harborside Constr., Inc. v. Heffler Contracting Group, et 28 al.; Case No. 21-cv-08572-SVK United States for the use of Asphalt Surfacing, Inc. v. Ahtna Design-Build, Inc. et al.