United States District Court, D. Massachusetts
UNITED STATES for the USE and BENEFIT of METRIC ELECTRIC, INC.,
CCB, INC. and THE HANOVER INSURANCE COMPANY,
MEMORANDUM AND ORDER ON CCB, INC.'S and THE
HANOVER INSURANCE COMPANY'S MOTION FOR SUMMARY
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Electric, Inc., (Metric) is suing federal contractor CCB,
Inc., and its surety, The Hanover Insurance Company
(Hanover), for allegedly terminating a subcontract
“without cause.” In the alternative, Metric seeks
payment of “the pro rata share for its work performed
to date.” Pl.'s Opp'n at 1. CCB now moves for
summary judgment, contending that Metric's breach of one
or more material conditions of the contract forfeited any
recovery at law, and that the ethical lapses of its owner
(Brian Sampson) preclude any recovery in quantum meruit.
Moreover, CCB argues that Metric has no actionable claim
under the Miller Act, 40 U.S.C. § 3133, given the
absence of an enforceable contact.
material facts, in the light most favorable to Metric, as the
nonmoving party, are as follows. CCB, the prime contractor,
entered into an agreement with the General Services
Administration (GSA) to renovate the John F. Kennedy Federal
Building at Government Center in Boston (the Project). CCB
brought in Hanover as the required surety. On December 2,
2013, CCB hired Metric to perform electrical work for the
Project. The value of Metric's subcontract was $1, 380,
301, with the work to be completed in four
Subcontract required Metric to submit certified payroll
reports and to pay the “prevailing wage” to its
employees on a weekly basis, as required by the Davis-Bacon
Act, 40 U.S.C. § 3141, et seq, and the
Massachusetts Wage Act, Mass. Gen. Laws. Ch. 149, §
From December 21, 2013, through April 26, 2014, Sampson, the
owner of Metric, signed weekly reports, under oath,
certifying that Metric had paid its employees in full for the
work performed the prior week on the Project. Despite the
certifications, it is undisputed that Metric failed to pay
wages to its employees during the first quarter of
March of 2014, Metric's six employees brought a lawsuit
for unpaid wages in Essex Superior Court. On April 6, 2016, a
Superior Court Justice entered summary judgment for the
employees. See Quigley, et al. v. Metric Electric,
Inc., Essex Cty. Sup. Ct. Dep't, No. 1477-CV-00369
(Apr 6, 2016). When it learned of the judgment, CCB advanced
funds to Metric to pay its employees' back wages. Metric
did not do so, however, until July 9, 2014. On April 23,
2014, Metric's employees quit work on the Project.
5, 2014, CCB met with Sampson to express concern over
“Metric's ability to provide ample manpower to meet
the schedule requirements for the
project.” Defs.' Ex. 18 at 2. Following the
meeting, Sampson briefly engaged an apprentice electrician to
work with him on the Project. On May 16, 2014, CCB sent
Sampson a notice declaring Metric in breach of its duty under
the Subcontract to meet the required schedule and setting out
in detail the work that remained uncompleted. Defs.' Ex. 19
at 1. Metric abandoned the job altogether on May 30, 2014.
10, 2014, CCB formally terminated the Subcontract, citing
unpaid wages and failure to timely perform. CCB then hired a
replacement subcontractor to complete the electrical
work. At the time of termination, Metric had
completed only 75% of the work on Phase I and 44% of the work
on the entire job. CCB had paid Metric $499, 498.30 for work
that had been done.
29, 2015, Metric brought this Complaint in the federal
district court against CCB and Hanover, alleging breach of
contract (Count I), quantum meruit (Count II), violation of
the Miller Act (Count III), and violation of the
Massachusetts Unfair Business Practices Act, Gen. Laws ch.
93A, §§ 2 and 11 (Count IV). CCB answered the
Complaint and filed two counterclaims against Metric alleging
breach of contract and violations of Chapter 93A. In
addition, CCB filed a cross-complaint against Sampson
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “To succeed, the moving party must
show that there is an absence of evidence to support the
nonmoving party's position.” Rogers v.
Fair, 902 F.2d 140, 143 (1st Cir. 1990).
state a claim for breach of contract under Massachusetts law,
a plaintiff must allege the existence of a valid contract,
that the plaintiff was ready and willing to perform, that the
defendant breached the contract, and that the plaintiff
sustained damages as a result. Singarella v. City of
Boston, 342 Mass. 385, 387 (1961). If the breach
by the accused party is material, the other party is excused
from further performance as a matter of law. Ward v. Am.
Mut. Liab. Ins. Co., 15 Mass.App.Ct. 98, 100-101 (1983).
A contract term is material if it involves “an
essential and inducing feature” of the contract.
Buchholz v. Green Bros. Co., 272 Mass. 49, 52
(1930). While the issue of the materiality of a breach is
ordinarily one of fact for the jury, Hastings Assocs.,
Inc. v. Local 369 Bldg. Fund, 42 Mass.App.Ct. 162, 171
(1997), here Metric's failure to pay its employees in a
timely fashion as required by Section 13 of the Subcontract,
the federal Davis-Bacon Act, and the Massachusetts Wage Act,
constituted a material breach of the Subcontract as a matter
of law. See 5 Bruner & O'Connor
Construction Law ' 18:28; see also Kelso v. Kirk
Bros. Mech. Contractors, Inc., 16 F.3d 1173, 1176 (Fed.
Cir. 1994). Metric's breach relieved CCB of any
further duty to perform under the Subcontract and hence any
duty to continue to make progress payments under its terms.
Consequently, Metric's claim of breach of contract by CCB
is doomed to fail.
alternative, Metric seeks the equitable intervention of the
court to secure reimbursement for $158, 823.14 in
uncompensated work on the Project that it claims to have
completed prior to the termination. Quantum meruit is a
theory of recovery (not a freestanding cause of action) that
is “independent of an assertion for damages under [a]
contract, ” J.A. Sullivan Corp. v.
Commonwealth, 397 Mass. 789, 793 (1986). “The
underlying basis for awarding quantum meruit damages in a
quasi-contract case is unjust enrichment of one party and
unjust detriment to the other party.” Salamon v.
Terra, 394 Mass. 857, 859 (1985).
axiomatic that a party coming before the court seeking
equitable relief must do so with clean hands. Keystone
Driller Co. v. Gen. Excavator Co.,290 U.S. 240, 244
(1933). This Metric cannot do. Its failure to pay its
employees in a timely fashion as required by state and
federal law (as well as by the terms of the Subcontract),
compounded by Sampson's filing of perjured certifications