United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court upon Plaintiff KO Pipeline,
LLC's Motion for Summary Judgment (“KO's
Motion”) (Doc. 13). The Motion is fully briefed and
ripe for disposition. For the following reasons, KO's
Motion is DENIED.
Moorhead Brothers, Inc., a South Carolina corporation, was
the general contractor on a project based in Belmont, Ohio
known as the Clark 12” LP Gas Project (the
“Project”). (Doc. 1, Compl. ¶ 6-7).
Plaintiff KO Pipeline, LLC, organized under the laws of Ohio,
performed pipeline construction services for Moorhead on the
Project pursuant to a Subcontract. (Id.; Doc. 1-1,
Subcontract). As provided by the Subcontract, Moorhead
retained 10% of all payment requests by KO until the work was
100% complete. (Doc. 1-1, § 3.1(C)). It is undisputed
that KO and its subcontractors completed the substantive
pipeline work contemplated by the Subcontract no later than
September 26, 2015. (Doc. 13-2, Moorhead's Resp. to Req.
for Admission No. 4). At that point, the final 10% retainage
amount was $86, 593.50. (Id., Admission No. 10).
Subcontract required KO to provide lien waivers for each of
the subcontractors hired by KO. (Doc. 1-1, § 3.1(C)).
Moorhead was also permitted to withhold from Subcontract
payments an amount necessary to protect Moorhead from
“any claim or lien against [Moorhead] or the premises
arising out of [KO's] performance of this
Subcontract” asserted by other parties “until the
situation has been satisfactorily remedied or adjusted by
[KO] to the sole acceptance of [Moorhead].”
(Id., § 3.1(B)). Of the subcontractors that KO
hired to work on the Project, KO was able to obtain lien
waivers for all but two: B&N Construction, Inc. and 7K
Construction, Inc. (Doc. 13-1, Ozalas Aff. ¶ 5).
and 7K contended they had supplied additional services on the
Project for which they had not been paid. (Id.).
After discussing the situation with Moorhead, KO provided
documentation to B&N and 7K that allegedly demonstrated
that any amounts owing to B&N and 7K were more than
offset by amounts that B&N and 7K owed to KO.
(Id.). However, KO did not provide the Court with
the documentation provided to B&N and 7K, nor does KO
specify whether the amounts B&N and 7K owed KO were
related to the Project, or even the amount that B&N and
7K claimed remained outstanding from the Project. B&N and
7K continued to refuse to provide lien waivers for the
Project. (Id. ¶ 6).
December 2015, KO and Moorhead exchanged a string of emails
regarding release by Moorhead to KO of certain funds related
to the Project. (Doc. 13-1, Emails, PAGEID #51-55). On
December 11, 2015, Moorhead's representative stated,
“once I receive all the final lien waivers from the
list below (with the exception of B&N and 7K) completely
filled out I will be able to release payment to you.”
(Id., PAGEID #53). On December 12, 2015 (a
Saturday), another representative of Moorhead stated,
“[t]he wire paperwork was turned in and wire will go
out Monday.” (Id., PAGEID #51). However, the
parties are now in agreement that Moorhead continues to
withhold $86, 593.50 in retainage. (Doc. 13-2, Admission No.
10). It is not clear from the record whether the wire
transfer did not proceed on Monday, December 14, 2015, as
anticipated, or whether this email string was in fact
referring to the release of funds other than the 10%
December 15, 2015, MarkWest, the owner of the Project, paid
Moorhead its final retainage payment. (Doc. 13-1, MarkWest
Payment Remittance Advice, PAGEID #50). Although not in the
record, Moorhead apparently sent a letter to KO on January
19, 2016, suggesting that the only reason Moorhead had not
released the retainage was that KO had not been able to
provide a lien waiver for B&N Construction, with whom KO
may have a dispute. (Doc. 13-2, Letter from KO's counsel,
PAGEID #70). KO made a demand through its counsel for payment
of the retainage on June 8, 2016, in which it noted that the
time for any subcontractor to file a lien on the Project had
expired, and that therefore “B&N Construction no
longer has any conceivable claim against the owner (or
Moorhead with whom it had no contract).”
did not release the retainage funds, and KO commenced this
action on October 10, 2016, in order to recover the $86,
593.50 withheld from the subcontract payments, as well as
interest under Ohio's Prompt Payment Act, R.C. §
4113.61, and attorney's fees and costs. KO now moves for
summary judgment on its contract and Prompt Payment Act
SUMMARY JUDGMENT STANDARD
moves for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. 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); Berryman v. SuperValu
Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012).
The Court's purpose in considering a summary judgment
motion is not “to weigh the evidence and determine the
truth of the matter” but to “determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine
issue for trial exists if the Court finds a jury could return
a verdict, based on “sufficient evidence, ” in
favor of the nonmoving party; evidence that is “merely
colorable” or “not significantly probative,
” however, is not enough to defeat summary judgment.
Id. at 249-50.
party seeking summary judgment shoulders the initial burden
of presenting the Court with law and argument in support of
its motion as well as identifying the relevant portions of
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed.R.Civ.P. 56). If this initial burden is
satisfied, the burden then shifts to the nonmoving party to
set forth specific facts showing that there is a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see
also Cox v. Kentucky Dep't of Transp., 53 F.3d 146,
150 (6th Cir. 1995) (after burden shifts, nonmovant must
“produce evidence that results in a conflict of
material fact to be resolved by a jury”).
considering the factual allegations and evidence presented in
a motion for summary judgment, the Court “views factual
evidence in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's
favor.” Barrett v. Whirlpool Corp., 556 F.3d
502, 511 (6th Cir. 2009). But self-serving affidavits alone
are not enough to create an issue of fact sufficient to
survive summary judgment. Johnson v. Washington Cty.
Career Ctr., 982 F.Supp.2d 779, 788 (S.D. Ohio 2013)
(Marbley, J.). “The mere existence of a scintilla of
evidence to support [the non-moving party's] position
will be insufficient; there must ...