Civil Action No. 00-3784 Section “N”United States District Court, E.D. Louisiana.
November 6, 2001
ORDER AND REASONS
EDITH BROWN CLEMENT, Chief United States District Judge.
Before the Court is plaintiff North Pacific Group, Inc.’s Motion for Summary Judgment. For the following reasons, the plaintiffs motion is DENIED.
BACKGROUND
In December 1998, defendant Jesco Construction Corporation (“Jesco”) contracted with the United States Army Corps of Engineers to repair several dikes along the Mississippi River in Plaquemines Parish, Louisiana. Plaintiff North Pacific Group, Inc. (“North Pacific”) delivered construction material to Jesco for use in the project. North Pacific claims that Jesco owes it $82, 481.17 for these supplies and asks the Court to enter summary judgment in that amount.
LAW AND ANALYSIS
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. Civ. P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant’s case. See Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party’s case See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
In the instant case, North Pacific contends that Jesco failed to pay $82, 481.17 for building materials delivered pursuant to a written contract. However, Jesco claims (1) that North Pacific’s bill for these materials exceeded the price set forth in the contract, (2) that the materials did not meet the contract’s specifications and (3) that Jesco incurred costs of $52, 528.06 in correcting North Pacific’s substandard delivery. See Moss Aff at ¶¶ 6-8. The Court finds that these issues of material fact preclude summary judgment in favor of the plaintiff.
In its opposition to the plaintiffs motion, defendant Continental Casualty Company (“Continental”) suggests that North Pacific’s claim under the Miller Act, 40 U.S.C. § 270b, should be dismissed as untimely filed. The Miller Act provides that “no . . . suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied. . . .” 40 U.S.C. § 270b(b) (West 2001). Continental claims that North Pacific made its last delivery to Jesco on July 22, 1999. See Moss Aff. at ¶ 9. Since North Pacific did not file the instant suit until December 27, 2000, Continental argues that the Miller Act claim must fail. However, it is unclear whether a delivery dated March 2, 2000 constitutes part of the disputed payment, and the Court cannot grant summary judgment in light of this factual discrepancy.
CONCLUSION
For the reasons given above, IT IS ORDERED that plaintiff North Pacific Group, Inc.’s Motion for Summary Judgment is DENIED.