         Case: 14-15408    Date Filed: 01/13/2016   Page: 1 of 9


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15408
                        Non-Argument Calendar
                      ________________________

             D.C. Docket No. 2:12-cv-01080-WKW-SRW



ANNA THOMAS,

                                                          Plaintiff-Appellant,

                                 versus

MICHAEL F. BURKHARDT,

                                                                   Defendant,

TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA,

                                                         Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                           (January 13, 2016)
              Case: 14-15408    Date Filed: 01/13/2016   Page: 2 of 9


Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Anna Thomas, proceeding pro se and as substitute appellant for Alvin

Thomas (“Thomas”) 1, appeals the dismissal with prejudice of Thomas’s civil

complaint alleging breach of contract and seeking specific performance against

Travelers Casualty and Surety Company of America (“Travelers”). This case

concerns Thomas’s work as a subcontractor on a federal project, for which he was

not fully paid by the contractor. He obtained a judgment against the contractor in

state court and, unable to collect on the judgment, filed a claim with Travelers,

which had issued bonds at the request of the contractor to ensure payment of those

who furnished materials and labor for the project.

      Travelers denied the claim on the basis that it was untimely under the Miller

Act, 40 U.S.C. §§ 3131–3134. Thomas then filed suit in federal court against

Travelers. The district court granted summary judgment to Travelers, concluding

that Thomas’s claim was time barred.

      On appeal, Thomas argues that the district court erred in granting summary

judgment to Travelers because the Full Faith and Credit Clause imposed a duty on

the district court to give effect to the state-court judgment. Thomas also argues

that the principals of res judicata and collateral estoppel preclude Travelers from

      1
         Thomas passed away while this appeal was pending. We granted Anna Thomas’s
construed motion to be substituted as the appellant.
                                         2
               Case: 14-15408       Date Filed: 01/13/2016     Page: 3 of 9


raising a statute-of-limitations defense because a judgment against a principal (the

contractor) establishes a surety’s (Travelers’s) liability as long as the surety had

notice of the action against its principal. Thomas maintains that Travelers had

notice and an opportunity to contest the contractor’s liability in the state-court

action. After careful review, we affirm.

                                             I.

       Thomas was hired by Thorington Electrical and Construction Company

(“TECC”) as a subcontractor to perform drainage work for a project at Maxwell

Air Force Base in Montgomery, Alabama. Thomas completed work on the project

in March 2006. 2 For this work, TECC paid Thomas $90,696.47, about half of

what he was owed. Thomas brought suit against TECC in Alabama state court in

January 2008 to collect the remaining amount due. In October 2008, the state

court entered judgment in favor of Thomas and ordered TECC to pay Thomas the

remaining $99,172.77 owed under the subcontract.

       In September 2008, Thomas notified Travelers that he intended to file a

claim on payment bonds Travelers had issued for the construction projects. In

accordance with federal law, TECC had engaged Travelers to execute a series of



       2
         The district court stated that Thomas completed work on the project on January 26,
2006, which is the date Thomas alleged in his complaint. However, there is some indication in
the record that Thomas worked through March 2006. We construe this ambiguity in Thomas’s
favor and assume that Thomas completed performance in March 2006. Nonetheless, it makes no
difference to the outcome.
                                             3
              Case: 14-15408     Date Filed: 01/13/2016   Page: 4 of 9


performance and payment bonds in favor of the United States for the project at

Maxwell Air Force Base.

      Thomas submitted a claim form, along with the October 2008 state

judgment, to Travelers in February 2009. After some additional communications

between Travelers and Thomas, Travelers notified Thomas in August 2009 that it

was denying his claim primarily because it was not timely filed under the terms of

the Miller Act. Believing that his claim was wrongfully denied, Thomas filed suit

in federal court against Travelers in December 2012, seeking to recover the amount

of the state-court judgment he obtained against TECC.

      The district court granted summary judgment to Travelers, concluding that

Thomas’s action was time-barred under the Miller Act because he had not brought

the action within one year of the date on which he last performed labor under the

contract. Consequently, the court dismissed Thomas’s complaint with prejudice as

time barred. After unsuccessfully moving for reconsideration of the judgment,

Thomas now brings this appeal.

                                         II.

      We review a district court’s grant of summary judgment de novo, viewing

the evidence and drawing all reasonable inference in favor of the non-moving

party. Burger King Corp. v. E-Z Eating, 41 Corp., 572 F.3d 1306, 1313 (11th Cir.

2009). Under Federal Rule of Civil Procedure 56(a), summary judgment should


                                         4
                Case: 14-15408       Date Filed: 01/13/2016       Page: 5 of 9


be granted “if 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.

                                              III.

       Here, the contract the parties entered into was for construction of a federal

project and therefore properly governed by the Miller Act. 3                  The Miller Act

requires a contractor to furnish performance and payment bonds to the United

States “[b]efore any contract of more than $100,000 is awarded for the

construction, alteration, or repair of any public building or public work of the

Federal Government.” 40 U.S.C. § 3131(b). The purpose of the Miller Act is to

ensure that those who furnish labor and materials for public construction projects

will be paid. Graybar Elec. Co. v. John A Volpe Constr. Co., 387 F.2d 55, 58 (5th

Cir. 1967). 4 Because the Miller Act is “highly remedial in nature,” it is to be

liberally construed “to effectuate the congressional intent to protect those whose

labor and materials go into public projects.” Id. (quotation omitted).

       The act provides that every person who has furnished labor or materials

under a contract for which a payment bond under 40 U.S.C. § 3131(b)(2) was


       3
          Although Thomas argued before the district court that his claim was not governed by
the Miller Act, he does not raise those contentions on appeal. Therefore, Thomas has abandoned
the issue. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs
filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed
abandoned.” (citations omitted)).
       4
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
                                               5
              Case: 14-15408     Date Filed: 01/13/2016   Page: 6 of 9


issued, but who has not been paid within ninety days of the last day of

performance, “may bring a civil action on the payment bond for the amount unpaid

at the time the civil action is brought and may prosecute the action to final

execution and judgment for the amount due.” 40 U.S.C. § 3133(b)(1). However,

any such action “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(b)(4).

      The last date that Thomas worked for or provided materials for the project

was in March 2006. Thomas did not file suit against Travelers until December 12,

2012, more than six years after he last performed under the contract.          Even

assuming Thomas could rely on the date he filed suit against TECC in state court

in January 2008, the action still was not timely brought within the one-year

limitation period. As a result, the district court correctly concluded that Thomas’s

suit against Travelers was not timely filed under the Miller Act.

      Thomas does not dispute that his claim was untimely but instead argues that

his existing state-court judgment should be recognized under the Full Faith and

Credit Clause of the United States Constitution and 28 U.S.C. § 1738. As a

general matter, full faith and credit means that “[a] final judgment in one State, if

rendered by a court with adjudicatory authority over the subject matter and persons

governed by the judgment, qualifies for recognition throughout the land.” Baker


                                          6
              Case: 14-15408     Date Filed: 01/13/2016   Page: 7 of 9


by Thomas v. Gen. Motors Corp., 522 U.S. 222, 232-33, 118 S. Ct. 657, 663-64

(1998).

      This Circuit has established, however, that full faith and credit does not

apply to a state-court judgment that would bind a surety on its Miller Act bond.

See United States Fid. & Guar. Co. v. Hendry Corp., 391 F.2d 13, 18 (5th Cir.

1968) (“Since only federal courts may determine a surety’s liability on a Miller Act

bond, a state court judgment that would bind a surety on his Miller Act bond

offends the congressional mandate. In these circumstances 28 U.S.C. 1738 has no

application.”).   The basis for this rule is that the Miller Act vests exclusive

jurisdiction for a “Miller Action” in a federal forum—“in the United States District

Court for any district in which the contract was to be performed and executed.” 40

U.S.C. 3133(b)(3); see also Hendry, 391 F.2d at 17-18. Thus, the district court

was not required to give effect to Thomas’s state-court judgment against TECC to

his federal action against Travelers.

      For similar reasons, Thomas’s arguments that res judicata and collateral

estoppel preclude Travelers from asserting its statute-of-limitations defense,

because Travelers had notice and an opportunity to contest TECC’s liability, are

misguided.    The usual law of suretyship “is inapposite when the plaintiff’s

recovery depends upon a Miller Act bond,” even if the surety had notice of a suit




                                         7
               Case: 14-15408    Date Filed: 01/13/2016   Page: 8 of 9


against its principal. Hendry, 391 F.2d at 17. The Court in Hendry explained the

reason for this rule:

             [T]he doctrine of estoppel against the surety rests on the
             principle that a surety with knowledge of a suit against
             the principal has a “full opportunity to defend” the suit
             and to protect its rights. But there is no such equitable
             principle at work here. The surety cannot protect its
             rights by joining in the defense of the suit. It cannot
             intervene as defendant any more than it could be named
             as defendant in the first place.

Id. Consequently, under Hendry, even if Travelers had notice of Thomas’s suit

against TECC, Thomas’s state-court judgment against TECC does not bind

Travelers in this federal suit under the Miller Act.

      In any case, even assuming that Travelers, as surety for TECC, were bound

by the state-court judgment against TECC, we cannot conclude, on this record, that

there is a genuine dispute as to whether Travelers “had full knowledge [of the suit]

and an opportunity to defend.” Frederick v. United States, 386 F.2d 481, 485 n.6

(5th Cir. 1967). Our review of the materials in the record shows that the bench

trial on Thomas’s claim against TECC was held on September 24, 2008, and that

Thomas first notified Travelers of his claim on the payment bond only two days

beforehand, on September 22, 2008. The record otherwise is silent as to whether

Travelers had notice of the suit or an opportunity to present its statute-of-

limitations defense at that time. Consequently, based on the record before us, we



                                           8
              Case: 14-15408     Date Filed: 01/13/2016   Page: 9 of 9


are unable to conclude that Travelers had a full opportunity to defend the suit, such

that it could be bound by the judgment against its principal.

      For the reasons stated, we affirm the district court’s grant of summary

judgment to Travelers.

      AFFIRMED.




                                          9
