
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1257                        UNITED STATES OF AMERICA ON BEHALF OF                            PITTSBURGH TANK & TOWER, INC.,                                Plaintiff, Appellant,                                          v.                               G & C ENTERPRISES, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Wayne P. Doane with whom  Kevin M. Cuddy and  Cuddy & Lanham  were            ______________            ______________      ______________        on brief for appellant.            Joanne F. Cole  with whom W. John  Amerling and Amerling &  Burns,            ______________            _________________     __________________        P.A. were on brief for appellee.        ____                                 ____________________                                   August 10, 1995                                 ____________________                 Per Curiam.  This case  involves the validity of a forum                 __________            selection clause in a construction subcontract.  Appellee G &            C Enterprises, Inc., was the general contractor on a  project            to construct  a jet fuel  storage and distribution  system at            Bangor  International  Airport  for  the  military.    G &  C            subcontracted  work  on  two large  fuel  tanks  to appellant            Pittsburgh  Tank  &  Tower,  Inc. for  an  agreed  payment of            $343,000.    Pittsburgh  Tank  agreed  to  complete  discrete            portions of its work in  accord with deadlines spelled out in            the  subcontract,  and  to  indemnify  G &  C  for  any  loss            resulting from delays caused by Pittsburgh Tank.                 Pittsburgh  Tank completed its work but, contending that            Pittsburgh  Tank had  failed to  meet  its deadlines,  G &  C            retained approximately $120,000 from the contract price.              Pittsburgh  Tank  then  filed  the  instant  action  for  the            $120,000  in federal  district court  in  Maine, asserting  a            claim against G & C for breach of the subcontract and a claim            on G &  C's payment bond  under the Miller  Act, 40 U.S.C.               270b.     The  Miller  Act  bond  protects  contractors  (and            subcontractors)  who have furnished  labor or materials  on a            federal construction project,  and a suit on the  bond can be            brought in  federal court.   United States ex rel  Sherman v.                                         _____________ _______________            Carter, 353 U.S. 210 (1957).            ______                 G & C moved  to dismiss for improper venue, relying on a            forum  selection clause  in  the subcontract,  which provided                                         -2-                                         -2-            that "venue  of all  suits arising  against CONTRACTOR  under            this contract shall  be in Burlington County[,  New Jersey]."            Pittsburgh Tank  argued that  the Miller  Act's venue  clause            trumped the contrary venue provision in the subcontract.  The            Miller Act states that suit is to be brought "in any district            in which  the contract was  to be performed and  executed and            not elsewhere . . .  ."  40 U.S.C.   270b(b).  The magistrate            judge  and  the  district court  rejected  Pittsburgh  Tank's            argument  and  dismissed the  complaint  for  improper venue.            This appeal followed.                 Pittsburgh  Tank contends that  the venue clause  in the            Miller Act is jurisdictional, and the parties cannot contract            around it.   The provision for venue in  a particular federal            court "and not elsewhere" could  be taken as a statement that            no other federal court has  jurisdiction to hear a Miller Act            claim.    In  the  past, lower  federal  courts  took varying            positions on the import of this ambiguous clause.  See, e.g.,                                                               _________            Gigliello v. Sovereign Constr. Co. Ltd., 311 F. Supp. 371 (D.            _________    __________________________            Mass.  1970)  (interpreting  the clause  as  jurisdictional);            Vermont Marble Co.  v. Roscoe-Ajax Constr. Co.,  246 F. Supp.            __________________     _______________________            439  (N.D. Cal. 1965)  (discussing the "divergence  of views"            about the meaning of the venue clause).                 The  Supreme Court, however,  seems to have  settled the            question in F.D. Rich Co.  v. Industrial Lumber Co., 417 U.S.                        _____________     _____________________            116 (1974).  In the course of deciding a venue question  in a                                         -3-                                         -3-            Miller Act case,  the Court said that the  statutory language            in question was "merely a venue requirement."  Id. at 124-26.                                                           ___            Most  of the  cases after  Rich have  said that  the disputed                                       ____            provision  is simply  a  venue  statute.   See,  e.g., In  re                                                       __________  ______            Fireman's Fund  Ins. Cos., 588  F.2d 93, 95 (5th  Cir. 1979);            _________________________            Arrow  Plumbing &  Heating, Inc.  v.  North Amer.  Mechanical            ________________________________      _______________________            Servs. Corp., 810 F. Supp. 369, 370 (D.R.I. 1993).            ____________                 Under conventional venue statutes, venue provisions have            long been subject to contractual waiver through a valid forum            selection agreement.  See, e.g., National Equip. Rental. Ltd.                                  _________  ____________________________            v. Szukhent,  375 U.S. 311  (1964).  Pittsburgh Tank  has not               ________            argued  that the  selection  clause  in  the  subcontract  is            invalid under traditional  standards (e.g., for fraud).   See                                                  ____                ___            Fireman's Fund Amer. Ins. Co. v. Puerto Rican Forwarding Co.,            _____________________________    ___________________________            492  F.2d 1294, 1297 (1st Cir. 1974).  And although the forum            selection  clause here  refers to  a  county that  apparently            contains  no federal  court, both  parties  have treated  the            clause as providing for  venue in the federal  district court            for the district of New  Jersey.  Accord, Arrow Plumbing, 810                                              ______  ______________            F. Supp. at 370.                 We agree  with appellant that the Supreme  Court in Rich                                                                     ____            was not focusing  on anything quite like the  problem in this            case and  Rich's venue reference  was something of  an aside.                      ____            Still,   the  designation  is   explicit  ("merely   a  venue            requirement") and  very  hard for  a lower  federal court  to                                         -4-                                         -4-            ignore.   Possibly  there are  reasons  why the  Miller Act's            policies  would warrant different standards for waiver of its            venue provisions than  the standards conventionally  applied.            But  no such argument  is made in  this case, so  we need not            pursue that issue here.                 The  only remaining  question is  whether  the dismissal            should  be  affirmed  or  the  case  should be  remanded  for            transfer  to a  New  Jersey district  court,  pursuant to  28            U.S.C.    1406(a).  No such request  was made to the district            court or in  Pittsburgh Tank's brief in  this court.   But it            emerged at oral argument that the special one-year statute of            limitations may  have run under  the Miller Act, 40  U.S.C.              2706(b); counsel for G  & C is to  be commended for  advising            the court that such a problem may exist.  However, it appears            that  Pittsburgh Tank may still  sue on the subcontract under            state  law  without  the  Miller  Act claim.    There  is  no            indication that the general contractor is insolvent.                 Under  these  circumstances, we  affirm  outright rather            than remanding for  consideration of a transfer.   It is rare            in a civil action to afford relief not requested in the trial            court  and,  at  a  minimum,  further  proceedings  would  be            required in the district court to allow  G & C an opportunity            to argue against transfer.  Since Pittsburgh Tank's state-law            contract claim apparently remains intact, we see no equitable            reason for a remand.   Pittsburgh Tank is free to pursue  the                                         -5-                                         -5-            matter in the district court under Fed. R. Civ. P. 60(b), but            we express no views on the merits of such an endeavor.                 Affirmed.                 ________                                         -6-                                         -6-
