     Case: 15-60251   Document: 00513294749     Page: 1   Date Filed: 12/04/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-60251                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
JSI COMMUNICATIONS,                                            December 4, 2015
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge:
      Plaintiff JSI Communications appeals the district court’s grant of
summary judgment in favor of Defendant Travelers Casualty & Surety
Company of America on JSI’s payment bond and bad faith claims.                        We
REVERSE and RENDER in part, REVERSE and REMAND in part, and
VACATE and REMAND in part.
                                I. Background
      McMillan-Pitts Construction Company, LLC was selected as the prime
contractor on a public project to construct the New Stoneville Office Building,
Mississippi State University Delta Research and Extension Center, located in
Stoneville, Mississippi (the “Project”). McMillan-Pitts was required to procure
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payment and performance bonds as surety for the Project, and McMillan-Pitts
obtained these bonds from Travelers. Under their agreement, McMillan-Pitts
and Travelers were jointly and severally liable for the covenants in the bonds.
The agreement further specified that the bonds were “governed by and shall
be construed in accordance with Mississippi law. Any inconsistency with these
Bonds and any provision of Mississippi law shall be remedied by deleting the
inconsistent portion of these Bonds and leaving the remaining consistent
portions in full force and effect.”
      Tackett Electric Company LLC was a subcontractor to McMillan-Pitts
on the Project, and Tackett subcontracted with JSI to install and test voice and
data cabling as well as fiber optic cabling. JSI completed its work on the
Project on July 31, 2012, and invoiced Tackett for $36,346.09. It is uncontested
that JSI has not been paid this sum.
      JSI is apparently not the only entity to which Tackett owes money. In
March 2012, a Tackett creditor unrelated to the Project served a writ of
garnishment on McMillan-Pitts, seeking access to any funds McMillan-Pitts
owed Tackett. In response, McMillan-Pitts commenced an interpleader action
in Mississippi chancery court, which named as defendants Tackett, the
unrelated Tackett creditor, and two Tackett subcontractors (not JSI) on the
Project with which McMillan-Pitts and Tackett had joint check agreements.
According to the complaint for interpleader, McMillian-Pitts believed these
four defendants were “the only persons who may be interested in the subject
proceeds or who may assert claims to the proceeds of McMillan-Pitts’[s]
contract with Tackett.” In connection with the interpleader action, McMillan-
Pitts tendered $19,445.16, the amount of money it still owed Tackett for its
work on the Project, into the court’s registry. On August 30, 2012, McMillan-
Pitts obtained a judgment releasing it from any further liability on its


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subcontract with Tackett, on the two joint check agreements, and on the writ
of garnishment.
       On or about October 3, 2012—shortly after McMillan-Pitts obtained this
judgment in the interpleader action—JSI notified both McMillan-Pitts and
Travelers that it was seeking payment under the Project’s payment bond due
to Tackett’s nonpayment of JSI’s invoice. On October 25, 2012, McMillan-Pitts
amended its complaint for interpleader to include JSI and “all persons or
entities supplying materials and/or labor to Tackett” on the Project. That same
day, McMillan-Pitts obtained an amended judgment extending the previous
release of liability to “any claim made by any other claimant made a party to
this action for sums due and owing from [Tackett] for materials, supplies
and/or labor provided to [Tackett] on the [Project].”
       On November 8, 2012, Travelers denied JSI’s claim on the bond on the
grounds that McMillan-Pitts had received a judgment releasing it of any
obligations under its subcontract with Tackett. 1 JSI and Travelers exchanged
further correspondence regarding JSI’s bond claim, but were unable to resolve
the issue. Accordingly, JSI sued Travelers in state court, seeking payment
under the bond, punitive damages, and attorneys’ fees. Travelers removed the
case on the basis of diversity jurisdiction, and both parties moved for summary
judgment. The district court granted summary judgment in favor of Travelers
and denied JSI’s subsequent motion for reconsideration. JSI timely appealed.
                                 II. Standard of Review
       We review the district court’s grant of summary judgment de novo and
construe all facts and inferences in the light most favorable to the nonmoving



       1Travelers initially also denied the claim on the grounds that JSI did not timely notify
McMillian-Pitts of the claim within 90 days of completing the work, as required under
Mississippi’s Little Miller Act. See MISS. CODE. ANN. § 31-5-51(3). Travelers eventually
dropped this defense during briefing on the cross-motions for summary judgment.
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party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir.
2009). Summary judgment is appropriate when “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).
                                III. Discussion
      Because public property is not subject to private liens for nonpayment,
Mississippi law requires contractors on public projects to procure bonds to
ensure payment to those who work on the project. MISS. CODE. ANN. § 31-5-51;
Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318, 1321 (Miss. 1989);
Aetna Cas. & Sur. Co. v. Doleac Elec. Co., 471 So. 2d 325, 327 (Miss. 1985).
Mississippi’s so-called Little Miller Act is premised on the federal Miller Act,
which requires both a payment and a performance bond on federal projects
worth more than $100,000. Key Constructors, 537 So. 2d at 1321; 40 U.S.C.
§ 3131(b). Like the federal Miller Act, Mississippi’s Little Miller Act protects
both subcontractors and sub-subcontractors. 40 U.S.C. § 3133(b)(2); MISS.
CODE. ANN. § 31-5-51(3). Those protected under Mississippi’s Little Miller Act
“shall have a right of action upon the . . . payment bond upon giving written
notice to [the] contractor within ninety (90) days from the date on which such
person did or performed the last of the labor or furnished or supplied the last
of the material for which such claim is made . . . .” MISS. CODE. ANN. § 31-5-
51(3). Furthermore, “the Mississippi Supreme Court has found federal court
decisions interpreting the Federal Miller Act instructive and persuasive when
interpreting Mississippi’s Little Miller Act.” Younge Mech., Inc. v. Max Foote
Constr. Co., 869 So. 2d 1079, 1082 (Miss. Ct. App. 2004) (citing Key
Constructors, 537 So. 2d at 1321).
      Travelers maintains that it is no longer liable to JSI on the bond because
“McMillan-Pitts’[s] liability to JSI was extinguished” by the chancery court
judgment. The exact source of McMillan-Pitts’s liability to which Travelers is
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referring is unclear. To the extent Travelers is arguing that its bond obligation
to JSI was discharged because McMillian-Pitts is no longer liable on its
contract with Tackett, we disagree. Under Mississippi’s Little Miller Act,
second-tier contractors—like JSI—can sue on a payment bond absent a direct
contractual relationship with the contractor. MISS. CODE. ANN. § 31-5-51(3)
(“Any person having direct contractual relationship with a subcontractor but
no contractual relationship express or implied with the contractor furnishing
said payment bond shall have a right of action upon the said payment
bond . . . .”). Accordingly, that McMillan-Pitts has been released of liability to
Tackett under the subcontract has no effect on JSI’s ability to recover under
the bond. See Ill. Sur. Co. v. John Davis Co., 244 U.S. 376, 380 (1917) (noting
under the federal Miller Act’s predecessor statute that “he who has supplied
[labor and materials] to a subcontractor may claim under the bond, even if the
subcontractor has been fully paid”); cf. Key Constructors, 537 So. 2d at 1323–
24 (noting that contractor was liable on the payment bond to a second-tier
subcontractor even though the contractor had a valid defense against the first-
tier subcontractor).
      To the extent Travelers is arguing that its bond obligation was
discharged under the chancery court judgment, we must construe the effect, if
any, of that judgment 2 on the Travelers bond obligation. We conclude that it
has no effect on the bond liability. Our interpretation of the chancery court
judgment begins by examining the very nature of interpleader proceedings.
McMillan-Pitts interpleaded the funds in the chancery court in accordance
with Mississippi Rule of Civil Procedure 22. In an interpleader action, the
court must determine what entities are entitled to the property at issue, known



      2 We do not address the troubling concept of amending a judgment to address a party
added that day.
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as the “stake.” See First Nat’l Bank of Vicksburg v. Middleton, 480 So. 2d 1153,
1155–57 (Miss. 1985); Md. Cas. Co. v. Sauter, 344 F. Supp. 433, 436–37 (N.D.
Miss. 1972). The discharge of liability the interpleader receives is defined by
the scope of the funds interpleaded. See MISS. R. CIV. P. 22(b) (“Any party
seeking interpleader . . . may deposit with the court the amount claimed, . . .
and the court may thereupon order such party discharged from liability as to
such claims and the action shall continue as between the claimants of such
money or property.” (emphasis added)); Lee v. W. Coast Life Ins. Co., 688 F.3d
1004, 1011 (9th Cir. 2012) (“The stake marks the outer limits of the
stakeholder’s potential liability where the respective claimants’ entitlement to
the stake is the sole contested issue; however, where the stakeholder may be
independently liable to one or more claimants, interpleader does not shield the
stakeholder from tort liability, nor from liability in excess of the stake.” (citing
State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 535 (1967))). 3
       According to the amended complaint for interpleader, the stake in the
interpleader action was the “proceeds of [the] contract between McMillan-Pitts
and Tackett”—$19,445.16. 4           Any funds relating to McMillan-Pitts’s bond
obligation (and that of Travelers) were clearly not included in the interpleader
action. This obligation is separate and distinct from any obligation McMillan-
Pitts and Travelers had on the Tackett subcontract. 5 Because Mississippi law


       3 Because Mississippi’s rules are generally modeled after the Federal Rules of Civil
Procedure, Mississippi courts often find federal authority persuasive when considering
similar Mississippi rules. BB Buggies, Inc. v. Leon, 150 So. 3d 90, 96 (Miss. 2014); Middleton,
480 So. 2d at 1156.
       4JSI’s claim on the payment bond is for $36,346.09. Even if JSI were entitled to all
of the money that McMillan-Pitts interpleaded, which is unlikely, it would still be due
$16,900.93. Under Travelers’s interpretation of the chancery court judgment, JSI would have
no recourse to recover this remaining sum.
       5 That the chancery court judgment had no effect on Travelers’s bond obligation is
underscored by the fact that Travelers does not maintain that JSI’s claim is precluded under
res judicata or collateral estoppel. Res judicata would not apply because the bond was not
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defines the release the interpleader receives by the scope of the stake, the
interpleader action does not shield Travelers (a non-party) from liability that
arises from its bond obligation.
        The original judgment releasing McMillan-Pitts was limited to specific
sources of liability: the Tackett subcontract, the joint check agreements, and
the writ of garnishment. When the judgment was amended to extend the
release to additional claimants, 6 there is no indication that the chancery court
intended the extension to operate as a release of an entirely separate obligation
owed by an unnamed party that was never at issue in the interpleader action,
namely the statutorily mandated payment bond. This payment bond was not
referenced in the amended judgment, nor did McMillan-Pitts mention the
existence of the bond in its amended complaint. Construing the chancery court
judgment in light of what sources of liability were before the court, we do not
interpret the judgment as having any effect on obligations under the payment
bond.
            This construction of the judgment also comports with the policies
underlying the Little Miller Act. To permit the chancery court to sub silentio
nullify Travelers’s bond obligation would be contrary to the very purpose of
Mississippi’s Little Miller Act, which is to provide protection to subcontractors
in the absence of lien rights. See Aetna Cas. & Sur., 471 So. 2d at 327; see also



the subject matter (or necessarily part of the same set of operative facts) of the interpleader
action. See Dunaway v. W.H. Hopper & Assocs., Inc., 422 So. 2d 749, 751 (Miss. 1982).
Collateral estoppel is also not a bar to recovery because the parties did not litigate the bond
obligation. See id.
        The exact effect of the chancery court’s release of liability vis-à-vis JSI is unclear,
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given that McMillan-Pitts appears to have no contractual obligation to pay JSI in the event
of Tackett’s nonpayment. Any obligation on the part of McMillan-Pitts arose from the
payment bond, which, from the pleadings, was not at issue in the chancery court case. Given
our determination that the chancery court judgment does not release Travelers from the
bond, we need not determine its effect on any other obligations.
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United States ex rel. Martin Steel Constructors, Inc. v. Avanti Constructors,
Inc., 750 F.2d 759, 761 (9th Cir. 1984) (“The purpose of the [Miller Act] is to
protect persons supplying materials and labor for federal projects, and it is to
be construed liberally in their favor to effectuate this purpose.” (quoted by Key
Constructors, 537 So. 2d at 1322)).
      Travelers draws our attention to the indemnification agreement between
it and McMillan-Pitts. Under this agreement, if JSI recovered on its bond
claim against Travelers, Travelers would seek indemnification from McMillan-
Pitts. According to Travelers, requiring McMillan-Pitts to indemnify Travelers
would “circumvent the effect and purpose” of the chancery court judgment.
Mississippi law does not require the contractor to indemnify its surety. Rather,
Travelers and McMillan-Pitts entered into this agreement between themselves
and likely priced their bond agreement in accordance with the existence of the
indemnification clause.      That McMillan-Pitts might have to indemnify
Travelers is irrelevant and has no bearing on our decision regarding
Travelers’s bond obligation to JSI under Mississippi’s Little Miller Act.
      We thus conclude that Travelers remains liable to JSI on the payment
bond, requiring reversal of the summary judgment granted to Travelers on this
claim. We then turn to whether summary judgment should have been granted
to JSI on its cross-motion.     To prevail on its payment bond claim under
Mississippi’s Little Miller Act, JSI must provide “(1) written notice of the claim,
(2) within ninety days from the date on which [JSI] last performed labor or
furnished or supplied the materials, and (3) [state] the amount of the claim
with substantial accuracy.” Younge Mech., 869 So. 2d at 1083. The evidence
submitted at summary judgment established that JSI satisfied these
requirements. Travelers has offered no basis, other than those rejected above,
for its failure to pay. Accordingly, we conclude that JSI is entitled to recovery
under the bond and summary judgment on liability for the invoiced amount
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should have been granted in the amount of $36,346.09. JSI also requested
attorneys’ fees and other sums. We remand those matters to the district court
for ruling in the first instance.   JSI also sought bad faith damages from
Travelers. The district court’s summary judgment in favor of Travelers on this
claim was based upon its erroneous determination that Travelers was not
liable to JSI on the bond. Thus, we vacate the grant of summary judgment and
remand for reconsideration in light of our opinion herein.
      Accordingly, we (1) REVERSE the district court’s grant of summary
judgment in favor of Travelers on the bond claim; (2) RENDER judgment in
favor of JSI on the issue of Travelers’s liability under the bond in the amount
of $36,346.09; (3) REMAND for the district court to consider the other fees and
costs relevant to JSI’s bond claim; and (4) VACATE the summary judgment on
the bad faith claim and REMAND for reconsideration of JSI’s bad faith claim
in light of this opinion.




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