United States of America for the Use of Asphalt Surfacing, Inc. v. Ahtna Design-Build, Inc. et al

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ATKINSON, ANDELSON, LOYA, RUUD & ROMO
A Professional Law Corporation
ANiccoli@aalrr.com
Michael J. Davis
Anthony P. Niccoli 	State Bar No. 219118
State Bar No. 299196
MDavis@aalrr.com
5075 Hopyard Road, Suite 210
Pleasanton, California 94588-3361
Telephone: (925) 227-9200
Fax: (925) 227-9202
Attorneys for Use Plaintiff ASPHALT SURFACING, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE
UNITED STATES OF AMERICA FOR THE
USE OF ASPHALT SURFACING, INC., a
California corporation,
Plaintiff,
v.
AHTNA DESIGN-BUILD, INC., an Alaska
corporation; GREAT AMERICAN
INSURANCE GROUP, an Ohio corporation,
Bond No. 3348912,
Defendants.
Case No. 	5:21-cv-08572-SVK
JOINT BRIEF AND STIPULATION TO
TRANSFER VENUE
Complaint Filed: 	November 4, 2021
Pursuant to the Court’s September 13, 2022 Order (Docket # 29), the parties to the above-
entitled action jointly submit this JOINT BRIEF AND STIPULATION TO TRANSFER VENUE.
I. Introduction
On September 6, 2022 in the related action pending in the United District Court in Alaska
under ECF No. 3:21-CV-00228-JMK, the District Court denied Defendants Asphalt Surfacing,
Inc. (“ASI”) and United Fire & Casualty Company Bond No. 54-197210’s Motion to Dismiss or
Transfer for Lack of Personal Jurisdiction, and held that the action shall remain in the District of
Alaska. (See ECF No. 3:21-CV-00228-JMK Docket # 30).
On September 13, 2022, this Court ordered that the parties submit a joint dismissal or joint
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01263356.DOCX
A PROFESSIONAL CORPORATION
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; ORDER GRANTING
STIPULATION
Case 3:22-cv-00219-JMK Document 32 Filed 10/06/22 Page 1 of 4

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A. 	This Court has the Power to Transfer the Action
Section 1404(a) provides that “For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any other district or division where it
might have been brought or to any district or division to which all parties have consented.” 28
U.S.C.A. § 1404. One of the initial questions before this Court was whether the Miller Act’s venue
provision at 40 U.S.C. § 3133(b)(3) was jurisdictional or a venue requirement subject to the
parties’ forum selection clause. This Court found that the venue provision is a venue requirement
that was overridden by the forum selection clause in Parties’ Subcontract. (Docket # 24).
As this Court has found that the forum selection clause is valid, Alaska is a proper venue
for disputes between the parties. The District Court in Alaska has subject matter jurisdiction over
this dispute, as evidenced by Judge Kindred’s ruling in ECF No. 3:21-CV-00228-JMK Docket #
29 (Attached hereto as Attachment #1). Accordingly, the Miller Act claim might have been
brought in the Alaska District Court and this Court has the power to transfer this matter to the
Alaska District Court.
B. 	Convenience of the Parties and Witnesses Supports Transfer
3:21-CV-00228-JMK, which involves substantially similar facts and circumstances as the
Discovery is currently underway between ASI and Ahtna Design-Build (“ADB”) in ECF
No.
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above-captioned matter. The only difference is that the instant action includes the Miller Act claim
and, as a result, Great American Insurance Group (“Great American”) as a named defendant.
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brief addressing whether the matter should be dismissed or the stay should remain in place.
(Docket # 29).
The parties have met and conferred regarding the disposition of this matter and have
agreed that transfer to the District Court in Alaska is appropriate. Accordingly, the parties jointly
stipulate to transfer this matter to the Alaska District Court pursuant to 28 U.S.C. § 1404(a).
II. Transfer is Appropriate and Proper
The Court has the power to transfer this matter to the Alaska District Court and the parties
are in agreement that the matter should transfer. Such a transfer would be for the convenience of
the parties and witnesses and in the interests of justice.
Case 3:22-cv-00219-JMK Document 32 Filed 10/06/22 Page 2 of 4

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Great American’s interest in this matter is substantially the same, as they provided the Miller Act
bond to Ahtna Design-Build (“ADB”) for the federal public works project at issue and maintain
their obligations under the bond, regardless of where the action is maintained.
Transferring this action to Alaska would bring the entire dispute into one District Court for
convenience of the parties and witnesses.
case management through ultimate disposition. 	Accordingly, transfer is appropriate for the
C. 	Transfer is in the Interests of Justice
ASI brought its timely Miller Act claim in the Northern District of California in good faith
and to comply with the statutory venue requirement set forth at 40 U.S.C. § 3133(b)(3). Miller Act
claims “must be brought no later than one year after the day on which the last of the labor was
performed or material was supplied by the person bringing the action.” 40 U.S.C. § 3133. Miller
Act plaintiffs “may prosecute the action to final execution and judgment for the amount due.” 40
U.S.C. § 3133. If this action were dismissed instead of transferred, ASI would be deprived of its
right to prosecute its claim to its ultimate disposition as it would not be able to timely assert its
Miller Act claim in the District Court in Alaska. ASI and ADB do not dispute that the District
Court in Alaska has personal jurisdiction over the Miller Act claim, and do not dispute the
suitability of the District Court in Alaska for venue of that claim.
As has been previously briefed, the Miller Act “represents a congressional effort to protect
persons supplying labor and material for the construction of federal public [works] in lieu of the
protection they might receive under state statutes with respect to the construction of nonfederal
[works].” U.S. for Use & Benefit of Walton Tech., Inc. v. Weststar Eng'g, Inc., 290 F.3d 1199,
1205 (9th Cir. 2002) (citing Mai Steel Serv. Inc. v. Blake Constr. Co., 981 F.2d 414, 416–17 (9th
Cir.1992)). Because the Miller Act is “highly remedial in nature ... [i]t is entitled to a liberal
construction and application in order properly to effectuate the Congressional intent to protect
those whose labor and materials go into public projects.” Weststar Eng’g, Inc., supra, 290 F.3d at
1205 (quoting United States ex rel. Sherman v. Carter, 353 U.S. 210, 216 (1957)).
Transfer of this action is in the interest of justice and would be consistent with Congress’
intent in enacting the Miller Act.
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A PROFESSIONAL CORPORATION
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III. Co nclusion & Stipu lation
Accordingly, counsel fo r the parties hereby agree and stipulate as fo llows:
I. 	That the above-captioned action shall be transferred to the United States Di st ri ct
4 	Court, District of Alaska at Anchorage;
5 	2. 	That the Clerk of this Court sha ll send their file and other materials relating to this
6 	matter to the Clerk of the United States District Court, District of Alaska at Anchorage, upon the
7 	Court's signing of the order herein.
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9 	Dated:
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14 	Date d: 	Io/J/z 1 z,.2-
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By:
By:
Michael J Davis
Attorneys for Use Plaintiff ASPHALT
SURFACING, INC.
Mic 	I! Cheng
O 	18
Attorneys for Defendants AHTNA DESIGN-
BUlLD, INC. and GREAT AMERICAN
INSURANCE GROUP
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[Proposed] ORD ER
Because a change in venue would be for the convenience of the pa rties and in the interest
of justic e, venue is proper in Alaska, and th e parties have so consented, the Parties Joint
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Stipulation to Transfer Venue is hereby granted and this case is hereby transferred to the Uni ted
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States District Court, District of Alaska at Anchorage.
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Hon. SUSAN VAN KEULEN
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28 United States Magistrate Judge
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