United States ex rel. Pre-Fab Erectors, Inc. v. A. B. C. Roofing & Siding, Inc.
UNITED STATES of America for the Use and Benefit of PRE-FAB ERECTORS, INC., a California corporation v. A. B. C. ROOFING & SIDING, INC., a Washington corporation, United Pacific Insurance Company, a Washington corporation, and American Re-Insurance Company, a New York Corporation
- Proceeding
- district
- Area
- civil
- Panel
- Westover (author)
Analysis
The court considered whether a Miller Act complaint filed on May 20, 1960, was timely given a final settlement date of May 20, 1959. The court ruled that the complaint was filed within the one-year statutory period by applying Federal Rule of Civil Procedure 6 to exclude the first day of the period.
| What the court decided | The model |
|---|---|
The court found that the complaint was filed within one year after the date of final settlement.“Consequently, it is the finding of the Court that the within action was commenced within one year after the date of final settlement.” | agree with court The court correctly applied Federal Rule of Civil Procedure 6(a), which mandates that the day of the event (final settlement) is excluded when computing a statutory period. By excluding May 20, 1959, the one-year period ends on May 20, 1960, making the filing on that date timely. This interpretation aligns with the text of the rule and supersedes the earlier common-law interpretation in Strona v. Bussey which did not account for the Federal Rules. |
The order itself: sound — The order is procedurally sound. It correctly identifies the conflict between the prior district court precedent (Strona) and the Federal Rules of Civil Procedure. It correctly applies Rule 6(a) to the Miller Act statute, which is an 'applicable statute' under the rule. The conclusion that the filing on the anniversary date is timely when the start date is excluded is logically consistent with the rule's text.
Opinion — Westover
WESTOVER, District Judge.
The complaint in this action was filed on May 20, 1960. Jurisdiction is conferred under §§ 270a and 270b of Title 40 U.S.C.A. (The Miller Act).
Section 270b(b) provides in part as follows:
“ * * *, but no such suit shall be commenced after the expiration of one year after the date of final settlement of such contract. * * ”
In the case at bar final settlement was made on May 20, 1959.
The question before the Court is whether the complaint was filed after expiration of one year from the date of final settlement.
In 1943 a Judge of this Court, Honorable J. F. T. O’Connor, in United States for Use of Strona v. Bussey, 51 F.Supp. 996, 998 (an action “on all fours” with the ease at bar), interpreted the term “after the expiration of one year” to mean a calendar year and held that where final settlement was on July 9, 1942 a complaint filed on July 9, 1943 was filed too late.
However, Rule 6 of the Federal Rules of Civil Procedure, 28 U.S.C.A., is as follows:
“(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. * * * ”
The Miller Act is an “applicable statute” within contemplation of Rule 6. The two most recent cases construing application of the rule seem to be United States to Use of Engineering and Equipment Company v. Wyatt, D.C., 174 F.Supp. 260 and Prince v. United States, D.C., 185 F.Supp. 269.
In the case at bar the complaint was filed timely, if the first day of the year involved is excluded in accordance with Rule 6. Consequently, it is the finding of the Court that the within action was commenced within one year after the date of final settlement.
Cites, in this corpus
- United States Ex Rel. Strona v. Bussey 2513 · 1943-09-28