The venue (or locale of the forum) in which to initiate or transfer a Miller Act (40 USC s. 3131-3134) payment bond dispute is an important consideration.    The Miller Act provides that the venue must be “in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.”  40 USC s. 3133(3)(B).  However, this venue requirement will not prevent a party from initiating the Miller Act payment bond lawsuit or transferring the lawsuit to a venue governed by a mandatory forum selection provision (one in which provides an exclusive venue for disputes) in the subcontract. See, e.g., U.S. f/u/b/o Pittsburgh Tank & Tower, Inc. v. G&C Enterprises, Inc., 62 F.3d 35  (1^st Cir. 1995) (finding that Miller Act payment bond lawsuit was subject to venue provision in subcontract).

 

 

For instance, in U.S. f/u/b/o MDI Services, LLC v. Federal Insurance Company, 2014 WL 1576975 (N.D.Ala. 2014), a subcontractor on a federal project initiated a Miller Act payment bond lawsuit against the surety and the prime contractor in the Northern District of Alabama because that is where the project was located. The surety and prime contractor moved to transfer the venue of the lawsuit to the Middle District of Florida pursuant to a venue provision in the subcontract.  The district court explained that “a valid forum-selection clause can trump the Miller Act’s venue provision.”  MDI Services, supra, at *2 citing In re Fireman’s Fund Ins. Cos., 588 F.2d 93, 95 (5^th Cir. 1979) (finding that Miller Act venue clause is subject to variation pursuant to the parties’ forum selection clause).  The district court, therefore, granted the motion to transfer venue.

 

If you are a prime contractor, it is a safe idea to include language in the forum selection provision that reflects that it governs any claim against the contractor’s payment bond surety.  This way, if the dispute is asserted only against the payment bond surety, the surety (routinely being defended by the prime contractor) can transfer the venue to the mandatory venue per the forum selection provision in the subcontract.  On the other hand, if you are a subcontractor  and the venue is silent as it relates to claims regarding the payment bond surety, perhaps you only want to assert the payment bond claim against the surety (and not the prime contractor) to, at a minimum, create the argument that the surety should not be able to transfer the venue based on a forum selection provision that should not govern the surety.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.