United States ex rel. Icon Construction, Inc. v. United Excel Corp.

Surety - Payment Bonds - Arbitration, Administrative Dispute Procedures, and Parallel Proceedings

In United States ex rel. Icon Construction, Inc. v. United Excel Corp., 2020 U.S. Dist. Lexis 168103 (W.D. Okl. September 15, 2020), the plaintiff subcontractor sued the prime contractor and its Miller Act surety.  The contractor moved to stay the action pending arbitration, and the court ordered the dispute to arbitration and stayed the action pending completion of the arbitration.  The prime contractor represented that it initiated arbitration with the AAA, but the plaintiff failed to participate.  The plaintiff later filed for bankruptcy and assigned its Miller Act claim to another party which then failed to pursue it.  The plaintiff later represented that it had re-acquired the claim and now wished to prosecute it.  The prime contractor moved to dismiss the suit with prejudice for the plaintiff's failure to comply with the earlier order for arbitration.  The court denied the motion to dismiss and instead ordered the plaintiff to initiate arbitration within 30 days and warned the plaintiff that failure to do so, or failure to proceed with the arbitration proceeding to resolution, "may result in the dismissal of this action with prejudice. . . ."