                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
____________________________
                              )
HIGHLAND RENOVATION CORP.,    )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 07-1902 (RWR)
                              )
HANOVER INSURANCE GROUP,      )
                              )
          Defendant.          )
____________________________ )

                       MEMORANDUM OPINION

     Plaintiff Gordon P. Peyton, Trustee in Bankruptcy for

Highland Renovation Corp. (“Highland”) brings this action against

surety bond issuer Hanover Insurance Group (“Hanover”) under the

Miller Act, 40 U.S.C. § 3133, for $329,183.03 that is allegedly

owed to Highland by the Military Personnel Services Corporation

(“MPSC”) for work Highland engaged in to renovate the Old Post

Office Pavilion in Washington D.C.   Hanover moved to dismiss for

lack of subject matter jurisdiction, and Magistrate Judge

Facciola issued a report recommending granting Hanover’s motion,

concluding that this court lacked jurisdiction because Highland

did not file suit within the one-year limitation period set forth

in 40 U.S.C. § 3133(b)(4).   Highland objects to the magistrate

judge’s report and recommendation.   Because Hanover’s motion is

properly treated as one for summary judgment, and there is no

genuine dispute about material facts that show that Highland
                                  - 2 -

filed this action outside of the limitation period, judgment will

be entered for Hanover.

                              BACKGROUND

     In 2004, the General Services Administration (“GSA”) entered

into three contracts with the MPSC to renovate the Old Post

Office Pavilion in Washington D.C. - - Contract 166 for $401,452;

Contract 212 for $902,650; and Contract 221 for $326,926

(collectively “the contracts”).     (Compl. ¶¶ 5, 7.)   In June 2006,

the MPSC entered into a contract with Highland that called for

Highland to perform the renovation work at the Old Post Office

Pavilion that MPSC was obligated to complete under its contracts

with the GSA.    (Id. ¶ 6.)   Hanover issued payment bonds for each

contract.   (Id. ¶ 7.)   Highland alleges that the MPSC failed to

pay Highland $329,183.03 for work it completed on the Old Post

Office Pavilion project, and brings this action against Hanover,

MPSC’s surety.    (Id. ¶¶ 7-9.)

     Hanover moved under Federal Rule of Civil Procedure 12(b)(1)

to dismiss, arguing that this court lacked subject matter

jurisdiction.    Hanover asserted that the last labor performed and

the last material supplied on the contracts was in July 2006,

more than the Miller Act’s one-year limitation period before this

lawsuit was filed on October 22, 2007.     Hanover has provided an

affidavit from the Vice President of MPSC who administered the

contracts stating that the last work performed that was central
                                 - 3 -

to Contract 212 was performed in June 2006, and that the last

work performed on Contracts 221 and 166 was performed in

July 2006.   (Def.’s Mot. to Dismiss (“Def.’s Mot.”), Ex. 4, Aff.

of Rob Johnston (“Johnston Aff.”) at 1-2.)    Accompanying the

affidavit were copies of invoices on Contracts 212 and 221

reflecting work performed on those contracts no later than

July 2006, as well as a certified copy of Highland’s payroll for

the period between May 5, 2006 and August 25, 2006, showing that

the latest work on Contract 166 was done on July 28, 2006.

Highland opposed by providing copies of punch lists showing work

that Highland says it performed under the contracts between

July 2006 and January 7, 2007.    (See Pl.’s Mem. in Opp’n to

Def.’s Mot. to Dismiss (“Pl.’s Opp’n”).)

     Magistrate Judge Facciola issued a report recommending that

Hanover’s motion to dismiss be granted because Highland filed its

complaint more than one year after the day on which it performed

its last labor or supplied its final material.    Hanover objects

to Magistrate Judge Facciola’s recommendation, citing as error

the conclusion that the work performed after the end-dates

mentioned in Johnston’s affidavit was remedial work and not

original contract work.
                               - 4 -

                            DISCUSSION

     A magistrate judge’s report and recommendation is reviewed

de novo.   LCvR 72.3(c); see also Fed. R. Civ. P. 72; Ames v.

Yellow Cab of D.C., Inc., Civil Action No. 00-3116 (RWR), 2006 WL

2711546, at *4 (D.D.C. September 21, 2006).    “Before a court may

address the merits of a complaint, it must assure that it has

jurisdiction to entertain the claims.”   Osserian v. Int’l Fin.

Corp., 498 F. Supp. 2d 139, 143 (D.D.C. 2007) (quoting Rodriguez

v. Nat’l Ctr. for Missing & Exploited Children, Civil Action No.

03-120 (RWR), 2005 WL 736526, at *6 (D.D.C. Mar. 31, 2005)).

When assessing a motion to dismiss for lack of subject matter

jurisdiction, a court may consider any undisputed facts in the

record, or “the complaint supplemented by undisputed facts plus

the court’s resolution of disputed facts.”    Coalition for

Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.

2003) (quoting Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992)).

     Cases in this and other jurisdictions have held that the

one-year limitations period in the Miller Act forms an integral

part of the statute and is jurisdictional in character.    See,

e.g., United States ex rel. Corbett Tech. Solutions v. Safeco

Ins. Co. of Am., 238 F. Supp. 2d 168, 171 (D.D.C. 2002) (citing

United States ex rel. Lank Woodwark Co. v. CSH Contractors, Inc.,

452 F. Supp. 922, 924 (D.D.C. 1978)); United States ex rel.
                               - 5 -

Celanese Coatings Co. v. Gullard, 504 F.2d 466, 468 (9th Cir.

1974) (“As an integral part of the statute creating the remedy,

the one year limitation in [the Miller Act] is jurisdictional.”);

 Diversified Carting, Inc. v. City of New York, Civ. Action No.

04-9507, 2006 WL 147584, at *10 (S.D.N.Y. January 20, 2006)

(“[T]he Miller Act limitations period is jurisdictional[.]”);

United States v. Hartford Fire Ins. Co., 339 F. Supp. 2d 799, 802

(W.D. Tex. 2004) (“[T]he one-year filing requirement [is] a

jurisdictional limitation[.]”).

     However, the D.C. Circuit, describing limitation periods as

being substantive restrictions on claims rather than impediments

to jurisdiction, has stated that “[s]tatutes of limitations

create affirmative defenses” which are properly raised in “a

motion under Rule 12(b)(6) [to dismiss for failure to state a

claim for which relief can be granted], not a motion under Rule

12(b)(1)” to dismiss for lack of subject matter jurisdiction.

Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir.

1982).   Likewise, the Supreme Court has recognized that there is

a rebuttable presumption that statutes of limitations in suits

against private parties can be equitably tolled.1   Irwin v. Dep’t



     1
      This may be true for even 28 U.S.C. § 2401(a), the general
statute of limitations for suits against the federal government.
See Harris v. Fed. Aviation Admin., 353 F.3d 1006, 1013 n.7 (D.C.
Cir. 2004), and Felter v. Norton, 412 F. Supp. 2d 118, 123-24
(D.D.C. 2006) (casting doubt on the proposition that § 2401 is a
jurisdictional prerequisite to suit in federal court).
                               - 6 -

of Veterans Affairs, 498 U.S. 89, 95-96 (1990).   More recently,

the Court has even said that “in recent decisions, we have

clarified that time prescriptions, however emphatic, are not

properly typed ‘jurisdictional.’ . . .    We have described . . .

unrefined dispositions [on jurisdictional grounds] as ‘drive-by

jurisdictional rulings’ that should be ‘accorded no precedential

effect’ on the question whether the federal court had authority

to adjudicate the claim in suit.”   Arbaugh v. Y&H Corp, 546 U.S.

500, 510-11 (2006).   Indeed, other courts have ruled that the

Miller Act’s one-year limitations period is not accurately

described as jurisdictional, but instead is a condition precedent

to bringing an action under the Miller Act that a plaintiff must

satisfy.   See, e.g., United States ex rel. PRN Ass’n Inc. v. K&S

Enter. Inc., Civ. Action No. 04-470, 2007 WL 925267, at *4 (S.D.

Ind. March 27, 2007) (“Defendants did not waive the timeliness

issue by failing to plead in their answer an affirmative defense

under the statute of limitations. . . .   [T]he one-year time

limit under the Miller Act [is] a condition precedent to suit, so

that the burden is on the plaintiff to plead and prove compliance

with the time limit[.]”); United States ex rel. Automatic

Elevator Co. v. Lori Construction, 912 F. Supp. 398, 399 (N.D.

Ill. 1996) (“[T]he bulk of the cases –- particularly the more

recent authority –- view the one-year restriction on suit as a

limitations period instead [of a jurisdictional limitation], with
                               - 7 -

the possibility that failure to meet that timetable may be

excused under the principles of equitable tolling and the

like[.]”); United States ex rel. American Bank v. C.I.T. Constr.,

Inc., 944 F.2d 253, 256-257 (5th Cir. 1991) (“[O]ur use of the

word ‘jurisdictional’ [in previous cases] referred ‘to the

conditional nature of the right to sue’ under the Miller Act, not

to the ‘jurisdiction of the court itself.’ . . .   The one-year

period in the Miller Act is limitational, not jurisdictional.”);

United States v. Fidelity & Deposit Co., 813 F.2d 697, 699 (5th

Cir. 1987) (“It is not surprising, therefore, that a majority of

the Circuit Courts, in construing the Miller Act’s provisions,

have followed the lead of the Heard Act courts and treated the

one-year requirement as a substantive limitation of the rights

conferred by the Act. . . .   However, to the extent that the word

‘jurisdictional’ is used in those cases, it refers to the

conditional nature of the right to sue, not to the jurisdiction

of the court itself.”).

     The more sound position appears to be, then, that the one-

year period of limitations found in the Miller Act is

substantive, not jurisdictional, and thus is an affirmative

defense that must be analyzed under Rule 12(b)(6) instead of Rule

12(b)(1), and be subject to the doctrines of waiver, estoppel,
                               - 8 -

and equitable tolling.2   Felter, 412 F. Supp. 2d at 122.   Thus,

the motion to dismiss will be viewed at this stage as one brought

under Rule 12(b)(6).

     When “matters outside the pleadings are presented to and not

excluded by the court” on a motion to dismiss under Rule

12(b)(6), “the motion must be treated as one for summary

judgment[.]”   Fed. R. Civ. P. 12(d).   In particular, on a motion

to dismiss under Rule 12(b)(6) asserting a statute of limitations

bar, where both parties submit material outside the pleadings and

“the parties are not taken by surprise or deprived of a

reasonable opportunity to contest facts averred outside the

pleadings and the issues involved are discrete” legal issues, the

court may convert the motion to a motion for summary judgment

“without providing notice or the opportunity for discovery to the

parties.”   See Tunica-Biloxi Tribe of La. v. United States, 577

F. Supp. 2d 382, 405 (D.D.C. 2008) (converting motion to dismiss

under 12(b)(1) and 12(b)(6) to a motion for summary judgment);

Smith v. United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C.

2007)(converting motion to dismiss for failure to file within the

limitations period to motion for summary judgment and considering

exhibits and affidavits outside the pleadings that were submitted


     2
      Highland does not present anything showing that the
doctrines of waiver, estoppel, or equitable tolling should apply
in this case. Highland argues only that the limitations period
should begin running from January 2007 since it engaged in work
between July 2006 and January 2007.
                               - 9 -

by the parties, stating “[t]he plaintiff, also under the mistaken

impression that the government’s statute of limitations argument

was properly before the Court under a Rule 12(b)(1) motion,

submitted affidavits and exhibits in response to the government’s

evidence.   Under these circumstances, the plaintiff cannot claim

to be caught in surprise by the Court’s consideration of the

exhibits and affidavits submitted by the parties”) (internal

quotations omitted); Kamen v. IBEW, 505 F. Supp. 2d 66, 71

(D.D.C. 2007) (converting motion to dismiss to motion for summary

judgment because the issue remaining was a purely legal issue and

“[f]airness, not excessive technicality is the guiding principle

under . . . the Federal Rules of Civil Procedure”); Automatic

Elevator Co., 912 F. Supp. at 400 (N.D. Ill. 1996) (granting a

motion to dismiss for failure to file action within the Miller

Act’s one-year statute of limitations by converting that motion

to “something akin to” a motion for summary judgment, because

both parties submitted material outside of the pleadings, and

there was no dispute about the authenticity of the parties’

submissions).   Both parties here submitted evidence in support of

their interpretation of when the limitations period began

running, and neither Highland nor Hanover contests the validity

of the other party’s submitted material.   The dispute centers on

the legal question of whether Highland’s submissions demonstrate

work that would toll, or extend, the beginning of the limitations
                                 - 10 -

period.    Hanover’s motion, then, will be treated as one for

summary judgment.

       Summary judgment may be granted when the moving party

demonstrates that there is no genuine issue as to any material

fact and that moving party is entitled to judgment as a matter of

law.    Fed. R. Civ. P. 56(c).   “In considering a motion for

summary judgment, [a court is to draw] all ‘justifiable

inferences’ from the evidence . . . in favor of the nonmovant.”

Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189

(D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).     “The relevant inquiry ‘is the

threshold inquiry of determining whether there is a need for a

trial -- whether, in other words, there are any genuine factual

issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either

party.’”    Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312

(D.D.C. 2009) (quoting Anderson, 477 U.S. at 250).     A genuine

issue exists where the “evidence is such that a reasonable jury

could return a verdict for the non-moving party,” as opposed to

where the evidence is “so one-sided that one party must prevail

as a matter of law.”    Anderson, 477 U.S. at 248, 252.

       An action brought under the Miller Act must be filed “no

later than one year after the day on which the last of the labor
                              - 11 -

was performed or material was supplied by the person bringing the

action.”   40 U.S.C. § 3133(b)(4).   A plaintiff cannot survive a

timeliness challenge without specific evidence of original

contract work being performed within the one-year limit.   See

United States ex rel. Kentucky Indus. Metals, Ltd. v. Hartford

Fire Ins. Co., Civ. Action No. 07-32-H, 2007 WL 3231436, at *1

(W.D. Ky. Oct. 30, 2007) (granting defendant’s dispositive motion

where plaintiff submitted daily reports that contained “no

reliable evidence of work performed by Plaintiff,” and that

“lack[ed] the specificity that one would expect, particularly

where it is necessary to overcome the evidentiary force of

contrary company documentary evidence”); Automatic Elevator Co.,

912 F. Supp. at 400-01 (granting defendant’s dispositive motion

where the plaintiff showed only that it performed work under a

warranty clause, not work on the original contract, within one

year of the date it filed its complaint); United States ex rel.

General Electric Co. v. Amwest Surety Ins. Co., Civ. Action No.

96-C-8061, 1997 WL 222869, at *2 (N.D. Ill. April 24, 1997)

(granting defendant’s dispositive motion where plaintiff

completed its work on the contract more than one year before

filing suit); United States ex rel Mod-Form, Inc. v. Barton &

Barton Co., 769 F. Supp. 235, 238-239 (E.D. Mich. 1991), aff’d,

966 F.2d 1453 (6th Cir. 1992) (disposing of plaintiff’s claim

since it was filed approximately two years after the date of
                              - 12 -

plaintiff’s last work).   The determinative question here is

whether Highland produced evidence that the work it claims to

have engaged in after the dates listed in Johnston’s affidavit

was “part of the original contract or furnished merely for the

purpose of correcting defects, or making repairs following

inspection of the project.”   Lank Woodwark Co., 452 F. Supp. at

925 (noting that work furnished merely to correct defects, or to

make repairs following inspection of the project, would not

extend the period of limitations); see also United States ex rel.

Austin v. Western Electric Co., 337 F.2d 568, 572-73 (9th Cir.

1964) (determining that the test for whether work extends the

limitations period under the Miller Act was “whether the work was

performed and the material supplied as a part of the original

contract or for the purpose of correcting defects, or making

repairs following inspection of the project”); Corbett, 238 F.

Supp. 2d at 172 (noting that not all work tolls the limitations

period under the Miller Act); United States ex rel. Hussmann

Corp. v. Fidelity & Deposit Co., 999 F. Supp 734, 741 (D.N.J.

1998) (noting that the rule in the majority of circuits,

including the District of Columbia, is that “remedial or

corrective work or materials, or inspection of work already

completed, does not fall within the meaning of ‘labor’ or

‘materials’ and will not extend the Miller Act’s one-year

limitations period”).
                              - 13 -

     The report and recommendation determined that even accepting

all of Highland’s assertions as true, the work that Highland

presented evidence of completing between July 2006 and

January 2007 was corrective or remedial in nature, and therefore

did not toll the limitation period under the Miller Act:

     [A]s is clear from caselaw, punch list work or work
     that is either corrective or remedial in nature does
     not toll the running of the statute of limitations
     under the Miller Act. . . . [T]he items listed on
     plaintiff’s punch lists require action that is clearly
     corrective or remedial in nature. For example, the
     punch list for work performed on January 12, 2007
     included the following items for Room No. A8201: 1) cap
     drain pipe, 2) remove dust from lower wall and base
     board, 3) paint hinges at upper access panel, 4)
     replace left door at electrical closet A, 5) touch
     south wall near window, 6) tuck carpet edges at base,
     and 7) clean light fixtures. . . . Although these
     tasks were performed after the date defendant claims
     was the date the last labor was performed on the three
     contracts at issue, for purposes of calculating the
     date that the statute of limitations begins to run, the
     key is not whether work was performed on the contract
     but whether the work that was performed was significant
     or crucial to the operation of the project. While
     punch list items by their very nature are not crucial
     to the operation of a project, . . . the jobs
     identified on the lists provided by plaintiff are minor
     repairs which can in no way be deemed significant or
     crucial to the completion of the renovation of the Old
     Post Office Pavilion. Plaintiff, who bears the burden
     of proof, failed to produce any evidence that work
     performed after the end dates cited by defendant was
     for anything other than punch list items.

(Report and Recommendation at 7-8.)

     Highland objects to the report and recommendation on several

grounds.   First, Highland argues that the report erred by

disregarding the assertion in Highland’s memorandum in opposition
                               - 14 -

to defendant’s motion to dismiss that “there were additional

requests for change order payments” between September 6, 2006 and

January 12, 2007.    (See Pl.’s Opp’n. ¶ 5.)   Even accepting

Highland’s assertion as true, Highland’s own evidence does not

show that Highland engaged in work that was significant or

crucial to the operation of the project within one year of the

filing of this lawsuit.    Highland attached as Exhibit A to its

opposition a series of payroll sheets that bear no indicia of the

nature of the work for which the wages were paid, or when that

work took place.    The payroll material that pertained to a

subcontractor named Moya Construction reflects that a series of

checks was written to that subcontractor, but only one check had

any indication that it was written in, or corresponded to, the

time period within one year of the date that Highland filed the

complaint.    That check was for a noticeably smaller3 amount than

were the other checks written to Moya Construction, and there is

no description of what work the check paid for or when that work

occurred.    (See Pl.’s Opp’n, Ex. A at pp. 4-6.)   Similarly,

Highland submitted payroll sheets for work done by a

subcontractor named VA Cabinet Company, LLC between September


     3
      The sheets have one column listed as “paycheck date.” The
check with a paycheck date of October 24, 2006, was written for
$960.00. The next smallest amount was the previous check, given
a paycheck date of October 16, 2006, which was written in the
amount of $2,112.00. The three checks written before that were
written in the amounts of $4,416.00, $13,464.00, and $7,296.00.
(See Pl.’s Opp’n, Ex. A.)
                              - 15 -

through October 24, 2006.   However, these payroll sheets

similarly do not describe the nature of the work that was being

paid for or when the work occurred.    While the material contains

a brief line stating “Millwork as of 10-23-06,” that line

reflects only that the work was engaged in before October 23,

2006.   Further, the payroll sheet containing a series of

paychecks to six employees states that the paychecks were issued

for work that was supplied before October 22, 2006.   All six

paycheck dates are listed as October 23, 2006; however, they list

hours for work days that appear to end the previous Wednesday,

October 18, 2006, more than one year before Highland filed suit

on October 22, 2007.   Further, while Highland asserts that page

nine of Exhibit A shows that the payroll information regarding VA

Cabinet Company, LLC certified that it represented “work done

‘commencing on the 2nd day of October and ending on the 23rd day

of October, 2006,” the page actually reads that it represents the

“payroll period” between October 2, 2006 and October 23, 2006.

(Emphasis added.)   (See Pl.’s Opp’n, Ex. A at pp. 7-9.)

     Highland also submitted a payroll sheet for a subcontractor

named Comfort Control, Inc. for work purportedly done between

January 8, 2007 and January 14, 2007.   (See Pl.’s Opp’n, Ex. A at

p. 11-12.)   Again, though, the payroll sheet bears no indicia of

the type of work for which the subcontractor was being paid.

This fails to rebut Johnston’s sworn assertion that the last work
                                - 16 -

performed under the contracts occurred in July 2006, or the

conclusion that the actual work done thereafter as is reflected

in plaintiff’s exhibits was corrective or remedial work that does

not extend the limitation period.    (See Pl.’s Opp’n, Ex. A at

p. 12; Johnston Aff. at 1-2.)

     Highland also argues that the report and recommendation

erred by failing to consider a memorandum written by project

manager Reba Burbach to Johnston on October 29, 2006 stating that

“there are a few items that have been put on the punch list for

phase 1 and phase 2 that are not punch list items, they are

change orders.”   (Pl.’s Objections at 3; Pl.’s Opp’n, Ex. B at

p. 4.)    Missing here, too, is any explanation or identification

of which items listed on the phase 1 and phase 2 punch lists,

which the report and recommendation deemed corrective or remedial

punch list work, were actually change orders.    Highland does not

provide any facts that contradict Johnston’s affidavit, and has

failed to present a genuine issue of material fact concerning

whether the action was filed within the one-year limitations

period.

                             CONCLUSION

     Highland has not shown a genuine dispute about material

facts showing that this action was filed outside of the one-year

period of limitations found in the Miller Act.    Accordingly,
                             - 17 -

summary judgment will be entered in favor of Hanover.   A final

Order accompanies this Memorandum Opinion.

     SIGNED this 1st day of June, 2009.


                                     /s/
                             RICHARD W. ROBERTS
                             United States District Judge
