United States District Court, District of Columbia
District of Columbia, for the use and benefit of STRITTMATTER METRO, LLC, Plaintiff
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, et al. Defendants
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY United States District Judge.
case brought under the District of Columbia's Little
Miller Act (“DCLMA”), D.C. Code § 2-201.02
et seq., Plaintiff Strittmatter Metro, LLC
(“Strittmatter”) seeks to collect against the
payment bond guaranteed by Defendants Fidelity and Deposit
Company of Maryland (“Fidelity”) and Zurich
American Insurance Company (“Zurich”) for the
labor, materials, and/or equipment that Strittmatter
furnished as a subcontractor on a construction project owned
by the District of Columbia at Ballou Senior High School.
Compl. ¶¶ 5-9. Before the Court is Defendants'
 Motion to Dismiss or, in the Alternative, Stay
Proceeding. Defendants contend that Plaintiff must first
exhaust the dispute resolution procedure set out in the
primary contract between the District and the prime
contractor, Chiaramonte-Hess, a Joint Venture
(“CHJV”) before it may seek recourse under the
DCLMA. Strittmatter has opposed the motion, but Defendants
have not filed a reply. Upon consideration of the pleadings,
relevant legal authorities, and the record as a whole, the
Court DENIES Defendants'  Motion to Dismiss or, in the
alternative, to Stay Proceedings.
District of Columbia's Little Miller Act
review of the operation and purpose of the DCLMA is
instructive at the outset in framing the analysis of
Defendants' instant motion. Although the DCLMA itself has
been the subject of little judicial interpretation, because
it is a statute very closely modeled on the Federal Miller
Act, 40 U.S.C. § 3131, it is appropriate to look to the
persuasive authority of those cases interpreting its federal
counterpart. See Castro v. Fidelity & Deposit Co. of
Md., 39 F.Supp.3d 1, 4-5 (D.D.C. 2014) (noting the
paucity of judicial analysis of the DCLMA and looking to the
persuasive authority of the Federal Miller Act); Hartford
Accident & Indem. Co. v. District of Columbia, 441
A.2d 969, 972 (D.C. 1982) (adopting the interpretation of the
Federal Miller Act by this District in United States ex
rel. Mariana v. Piracci Constr. Co., Inc., 405 F.Supp.
904 (D.D.C. 1975), in finding the DCLMA to allow a
subcontractor to recover “delay damages”).
See also Campbell v. Cumbari Assocs., Inc., No.
3817-84, 1987 WL 114846, at *2 (D.D.C. July 6, 1987)
(“Because the District and Federal provisions are
virtually in haec verba, the Court may look to cases
decided under the federal law for guidance in interpreting
the local statute.”).
DCLMA, like the Federal Miller Act, seeks to address the
precarious position in which subcontractors on government
projects find themselves. See, e.g.,
Castro, 39 F.Supp.3d at 5. In contrast to
subcontractors on a private construction project, the
subcontractor on a government project is generally unable to
protect itself from losses occasioned by default by the prime
contractor by placing a lien on the property. Id.
The DCLMA seeks to fill this gap, providing protection for
subcontractors such as Strittmatter by requiring the prime
contractor to secure a payment bond, upon which the
subcontractor may recover in the event of default by the
prime contractor. Id. (reviewing the history and
purpose of the Federal Miller Act and the DCLMA). See
also F. D. Rich Co. v. United States ex rel. Indus. Lumber
Co., 417 U.S. 116, 122 (1974) (explaining that in the
absence of the traditional protection of a lien upon which
subcontractors on government projects can rely, “[t]he
Miller Act was intended to provide an alternative remedy to
protect the rights of these suppliers”); Hartford
Accident, 441 A.2d at 972 (rejecting a more limited
application of the DCLMA and finding its provisions to extend
to delay damages based on the guiding principle that the
DCLMA's payment bond “was designed to protect
subcontractors supplying labor and materials to a government
the Federal Miller Act, the DCLMA was fashioned with the
particular purpose of providing aggrieved subcontractors with
a mechanism for promptly recovering compensation.
See United States v. Zurich Am. Ins. Co., 99
F.Supp.3d 543, 548 (E.D. Pa. 2015). Indeed, the Federal
Miller Act was promulgated as a revision of the Heard Act and
shortened the period between the completion of work by the
subcontractor and accrual of the cause of action from six
months to 90 days. It was Congress' intent in making this
revision to remedy the “resultant hardships” to
the subcontractor who, under the Heard Act, could be required
to wait years following the completion of its work before he
could recover the full payment due. Id. (quoting
United States v. Daniel, Urbahn, Seelye &
Fuller, 357 F.Supp. 853, 859 (N.D. Ill. 1973).
Similarly, under the DCLMA, for a first-tier subcontractor
such as Strittmatter (that is, a contractor who has
contracted directly with the prime contractor), a cause of
action accrues under the DCLMA 90 days following the
completion of work or delivery of materials, allowing it to
seek recovery from the payment bond secured by the prime
contractor with no additional procedural requirements imposed
by the statute. D.C. Code § 2-201.02(a). The
subcontractor must bring this action within the one year of
the final day of its work or delivery of materials on the
government project. D.C. Code § 2-201.02(b). This clear
Congressional objective of providing a speedy remedy for an
aggrieved subcontractor must be borne in mind when
interpreting the interplay between the Miller Act (and the
District's Little Miller Act) and any dispute resolution
procedures set out in the prime contract. United States
ex rel. Straightline Corp. v. American Cas. Co. of Ready,
Pa., No. 5:06-00011, 2007 WL 2050323, at *3 (N.D. W.Va.
2007) (“The Act ‘should receive a liberal
construction to effectuate its protective
purposes.'” (quoting United States ex rel.
Sherman v. Carter, 353 U.S. 210, 216 (1957))).
District of Columbia entered into a contract with CHJV as the
general or prime contractor for construction work on Ballou
Senior High School. Compl. ¶ 5. In undertaking the
project, CHJV thereafter contracted with Strittmatter, a
subcontractor who was to furnish materials and/or equipment
and render labor on the Ballou Senior High School project.
Id. ¶¶ 7, 8. In January 2013, CHJV and
Strittmatter executed both a Master Subcontract Agreement for
a Stipulated Sum and a Subcontract Agreement Rider, which set
out the initial price of Strittmatter's services and
materials at $4.9 million, with provisions allowing for an
expansion of the scope of work as the project progressed.
Id. ¶ 7. Strittmatter claims to have duly
performed but to have received only partial payment;
Strittmatter seeks to recover additional payment in excess of
$1.2 million. Id. ¶ 10.
accordance with the District's Little Miller Act, D.C.
Code § 2-201.01(a)(2) et seq., CHJV secured a
payment bond, thereby securing payment to subcontractors such
as Strittmatter. Compl. ¶ 6. It is upon this bond that
Strittmatter seeks to collect payment in this action before
the Court, with the case having been removed from the
Superior Court for the District of Columbia.
issue before the Court in the instant motion are the
provisions of the Prime Contract that govern the recourse
available to CHJV as the prime contractor in the event of a
dispute with the District of Columbia, and which dispute
resolution procedures Defendants argue also bind
Strittmatter. In short, absent agreement to the contrary, any
dispute arising between CHJV and the District must first be
referred to non-binding mediation, and, where mediation
fails, all disputes must be brought before the District of
Columbia Board of Contract Appeals. Defs.' Mot. to
Dismiss at 4 (citing Article 12 of the Prime Contract). CHJV
has indeed initiated the mediation process with respect to
its claims against the District and has included
Strittmatter's claims together with its own and on
Strittmatter's behalf. Defs.' Mot. to Dismiss at 4.
Strittmatter, by contrast, has sought recourse under the
DCLMA in the instant action.
to Federal Rule of Civil Procedure 12(b)(6), a party may move
to dismiss a complaint on the grounds that it “fail[s]
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not]
suffice if it tenders ‘naked assertion[s]' devoid
of ‘further factual enhancement.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6)
motion, a court may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by
reference in the complaint, ” or “documents upon
which the ...