United States District Court, D. South Dakota, Southern Division
UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF ASH EQUIPMENT CO., INC. D/B/A AMERICAN HYDRO; AND ASH EQUIPMENT CO., INC., A MARYLAND CORPORATION; Plaintiffs,
MORRIS, INC., A SOUTH DAKOTA CORPORATION; UNITED FIRE AND CASUALTY COMPANY, AN IOWA CORPORATION; AND RED WILK CONSTRUCTION, INC., A SOUTH DAKOTA CORPORATION; Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL MORRIS, INC. DOCKET NO.
VERONICA L. DUFFY JUDGE
a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought
by the United States of America for the use and benefit of
Ash Equipment Company, Inc., doing business as American Hydro
(“Hydro”). Defendants are Morris, Inc.
(“Morris), United Fire and Casualty Company
(“UF&CC), and Red Wilk Construction, Inc. (Red
Wilk). Pending before the court is a motion filed by Hydro to
compel Morris to provide certain discovery. See
Docket No. 81. The presiding district judge, the Honorable
Lawrence L. Piersol, referred this motion to this magistrate
judge for a decision. See Docket No. 87.
Morris contracted with the United States Army Corps of
Engineers (“the Corps”) to do work on the Fort
Randall Dam spillway at Pickstown, South Dakota. Morris
obtained a Miller Act payment bond on the project from
defendant UF&CC in the amount of $7, 472, 670.25. The
payment bond obligated Morris and UF&CC jointly and
severally to guarantee payment to any subcontractor of
Morris’ who furnished labor and materials on the
project as well as to persons who had a direct contractual
relationship with Morris on the project.
the project required concrete removal using hydrodemolition
methods as required by the Corps in its project plans and
specifications. Morris subcontracted this work to Red Wilk,
who in turn subcontracted with Hydro. Red Wilk promised to
pay Hydro for Hydro’s work on the project within 10
working days after Morris paid Red Wilk on monthly progress
payments. Hydro brought suit after Red Wilk allegedly failed
to pay for certain claims made by Hydro for completed work on
the project. Hydro gave notice to Morris that it had not been
paid. Hydro’s first notice to Morris claims amounts
unpaid of $520, 135.00; its supplemental notice claimed
unpaid amounts of $1, 168, 018.49. In its complaint, Hydro
asserts a breach of contract claim against Red Wilk, an
equitable claim in quantum meruit against Morris,
and claim against the UF&CC bond.
responded to this lawsuit by filing a crossclaim for
indemnity against Red Wilk, asserting that Red Wilk must
indemnify Morris for any monies Morris must pay to Hydro. Red
Wilk asserted a compulsory counterclaim against Hydro,
asserting that the prime contract was part and parcel of the
contract between Red Wilk and Hydro. Red Wilk further
asserted that Hydro did defective and/or incomplete work
pursuant to its contract with Red Wilk.
served Morris with a number of discovery requests about which
disputes arose. See Docket No. 82. The instant
motion was filed, which Morris resists in part. See
Docket No. 88.
Meet and Confer Requirement
a party may make a motion to compel another party to make
discovery or disclosure, the movant must certify that they
have in good faith conferred or attempted to confer with the
opposing party from whom the discovery or disclosure is
sought in an attempt to resolve the disagreement without
court intervention. See Fed.R.Civ.P. 37(a)(1). Hydro
alleges that it has complied with this requirement. After
reviewing the communications between counsel that are of
record, the court concludes that Hydro met its obligation.
Therefore, the court considers the motion on its merits.
Standards Applicable to Discovery
Rule of Civil Procedure 26(b)(1) sets forth the scope of
discovery in civil cases pending in federal court:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed