Citations
- 816 F. Supp. 2d 1139
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss or, in the Alternative, to Transfer Venue, filed May 18, 2011 (Doc. 16)(“Motion”). The Court held a hearing on July 27, 2011. The primary issue is whether, pursuant to the Miller Act, 40 U.S.C. §§ 3131-3134, the United States District Court for the District of New Mexico is the proper venue for Plaintiff Brown Minneapolis Tank Co. (“BMT Co.”) to bring this action. The Court finds that venue is appropriate, because the Miller Act’s venue provision requires that claims must be brought in the location where the contract was performed, and the construction was done in New Mexico. The Court therefore denies the Motion.
FACTUAL BACKGROUND
“The basic facts and procedural history are not in dispute.” Motion at 2. See Use Plaintiff Brown Minneapolis Tank Co.’s Response to Defendants’ Motion to Dismiss Or, in the Alternative, to Transfer Venue at 1, filed May 31, 2011 (Doc. 20)(“Response”)(“For the most part, the background facts which are relevant to this issue are not disputed, and the parties have stipulated to the following facts.... ”). In April 2009, Kinley Construction entered into contract number W912PP-09-C-0025 (“Prime Contract”) with the Department of the Army, U.S. Army Corps of Engineers, for the construction of, among other things, two fuel storage tanks and related facilities at Kirtland Air Force Base, located within Bernalillo County, State of New Mexico (the “Project”). Response ¶ 1, at 2. See Motion ¶ a, at 2. In connection with execution of the Prime Contract, Kinley Construction, as principal, and Defendant Travelers Casualty and Surety Company of America, as surety, executed payment bond number 105246436. See Response ¶ 2, at 2.
In September, 2009, Kinley Construction and BMT Co. entered into the Agreement between Contractor and Subcontractor, Contract No. 10-001-01, filed May 18, 2011 (Doc. 16-l)(“the Subcontract”), under which BMT Co. agreed to build the fuel storage tanks required for the Project under the Prime Contract. Motion ¶ b, at 2; Response ¶ 3, at 2. According to Kinley Construction, under the terms of the Subcontract, BMT Co. was to complete fabricating the tanks no later than April 13, 2010. See Motion 1Ib, at 2; Subcontract ¶ 7, at 4; id. Ex. B. Pursuant to the Subcontract, BMT Co. performed labor and supplied materials which were incorporated into the work required by the Prime Contract. See Response ¶ 4, at 2.
Because of high wind conditions at the job site, one of the tanks collapsed in April, 2009. Kinley Construction alleges that BMT Co. negligently failed to adequately protect its work from weather damage; BMT Co. denies that it was negligent and alleges that it went far beyond industry standards in its efforts to secure the tank. See Motion ¶ c, at 2-3. BMT Co. rebuilt the tank. BMT Co. also designed and installed a wind protection system intended to protect the tank from further damage. In June, 2010, however, a second high wind event caused the tank to collapse a second time. See Motion ¶ d, at 3. The final completion of the Project was delayed due to the two tank collapses. A dispute has arisen between BMT Co. and Kinley Construction regarding whether BMT Co.’s performance was timely under the Subcontract. See Response ¶ 6, at 2. Kinley Construction has taken the position that BMT Co. is responsible for the costs Kelly incurred from the delays, which BMT Co. denies. See Motion ¶ e, at 3. BMT Co. has issued, and Kinley Construction has refused to pay, invoices for labor and materials furnished to and incorporated into the work required by the Prime Contract. See Response ¶ 5, at 2.
PROCEDURAL BACKGROUND
Kinley Construction filed suit against BMT Co. in the 67th Judicial District Court, Tarrant County, Texas on March 8, 2011. See Kinley Constr. Co. v. Brown Minneapolis Tank Co., No. 67-251478-11, Plaintiffs Original Petition (Tex.D.Ct. March 8, 2011)(Doc. 16-2)(the “Texas Action”). Kinley Construction brought breach of the contract, negligence, indemnity, and unjust enrichment claims based on BMT Co.’s performance under the Subcontract, alleging that BMT Co. was at fault for the collapse of the fuel tanks and liable to the ensuing delays and the $336,138.75 in costs Kinley Construction incurred as a result of the delays. On April 8, 2011, BMT Co. removed the Texas Action to the United States District Court for the Northern District of Texas. See Kinley Constr. Co. v. Brown Minneapolis Tank Co., No. CIV 11-0231-01, Notice of Removal (N.D.Tex. Apr. 8, 2011).
On April 6, 2011, BMT Co. filed its Complaint for Violation of the Miller Act, Claim on Payment Bond and Breach of Contract in this action. See Doc. 1 (“Complaint”). BMT Co. commenced this action within one year of the date on which it last performed labor or supplied materials for the work required by the Prime Contract. See Response ¶ 8, at 2. BMT Co. brings Miller Act claim against the Defendants, a breach of contract claim against Kinley Construction, and a claim for payment on the bond against Travelers. See Complaint Counts I — III, at 3-4. BMT Co. alleges that, “[wjhile Brown was prosecuting its work under the Subcontract, the construction site experienced weather events which — through no fault of Brown’s — resulted in collapses of the partially erected tanks.” Complaint ¶ 10, at 1. BMT Co. alleges that it completed all work it was obligated to do under the contract, and that Kinley Construction refuses to pay the $74,402.00 balance that remains due under the contract.
On April 27, 2011, BMT Co. filed a motion to transfer the Texas Action to this Court, to be consolidated with this action. See Kinley Constr. Co. v. Brown Minneapolis Tank Co., No. CIV 11-0231-08, Defendant’s Motion to Transfer Venue (N.D.Tex. April 27, 2011)(“Motion to Transfer Venue”). Kinley Construction opposes the motion. See Kinley Constr. Co. v. Brown Minneapolis Tank Co., No. CIV 11-0231-19, Plaintiffs Response and Opposition to Defendant’s Motion to Transfer Venue (N.D.Tex. May 18, 2011).
The Defendants now move to dismiss or, in the alternative, to transfer venue to the Northern District of Texas. The Defendants assert that, when related cases are pending before two federal courts, the court in which the case was last filed may refuse to hear it if the eases raise substantially overlapping issues. They argue that this case involves duplicative or substantially similar issues as the Texas Action, and that the two cases should be resolved together. They further argue that, because the Texas Action was filed first, the Northern District of Texas is the appropriate venue for adjudication. The Defendants also contend that BMT Co.’s claims arise from the same transaction or occurrence, and therefore must be brought, if at all, as compulsory counterclaims in the Texas action under rule 13 of the Federal Rules of Civil Procedure.
On May 31, 2011, BMT Co. filed its Response. BMT Co. does not dispute that the facts in this case involve identical or substantially overlapping issues as the Texas Action. Indeed, BMT Co. asserts in its Motion to Transfer Venue that it filed in the Texas Action that the Texas Action should be consolidated with this action, because the actions “involv[e] the same parties, the same contract and the same incident.” Motion to Transfer Venue at 1. BMT Co. argues instead that, notwithstanding the first-to-file doctrine, under the Miller Act’s venue requirements, the District Court of New Mexico has “exclusive venue” for its Miller Act claim. Response at 1. They contend that the Miller Act’s venue provision is a special circumstance that makes it unnecessary for the Court to weigh the inconveniences to the parties, because “[w]here Congress has established an exclusive venue for actions, inconvenience is not an appropriate consideration for the courts.” Response at 5. BMT Co. further argues that the “Miller Act constitutes a special circumstance that outweighs prudential venue considerations of the first-filed suit.” Response at 6.
On June 3, 2011, the Defendants filed their Memorandum in Reply to Plaintiffs Response to Motion to Dismiss or, in the Alterantive [sic], to Transfer Venue. See Doc. 21 (“Reply”). The Defendants assert that they filed the Texas Action almost a month before BMT Co. filed this action. The Defendants assert that BMT Co. contends that the Court has exclusive jurisdiction, and argues that the Miller Act venue provision “ ‘is merely a venue requirement’ and not a jurisdictional absolute.” Reply at 2 (quoting F.D. Rich Co., Inc. v. United States ex rel. of Indus. Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974)). The Defendants further contend that the Miller Act’s venue provision benefits only defendants, and defendants may elect to assert or waive the venue requirement. Accordingly, the Defendants argue, because they do not seek the Miller Act’s venue provision’s benefits, BMT Co. has no ground upon which to invoke them. The Defendants also assert that “the inconvenience that might be suffered by one party or the other, based on where the cases ultimately are consolidated and tried, is equally balanced.” Reply at 4.
At the July 27, 2011 hearing, Thomas G. Gruenert, counsel for the Defendants, stated that the Court was likely correct to surmise that the Honorable John H. McBryde, United States District Court Judge for the United States District Court for the Northern District of Texas, was likely waiting to see whether the Court would grant the Motion before ruling on BMT Co.’s Motion to Transfer Venue. See Transcript of Hearing at 5:19-6:8 (taken July 27, 2011)(Court, GruenertlCTr.”). Mr. Gruenert also contended that the weight of the caselaw supports that Judge McBryde, who first had jurisdiction over this matter, should decide which venue is appropriate. See Tr. at 6:20-7:1 (Gruenert). The Defendants asserted that the Miller Act does not provide exclusive jurisdiction in Albuquerque, New Mexico. See Tr. at 7:2-5 (Gruenert). They argued that the Miller Act’s venue provision is “an election that Kinley Construction could have taken advantage of to insist on the case being in Albuquerque,” and that “Kinley has not done that.” Tr. at 7:2-5 (Gruenert). Mr. Gruenert asserted that “forum nonconvenience issues cut both ways,” Tr. at 7:19-8:5 (Gruenert), and that the forum nonconvenience analysis “is a wash,” Tr. at 8:19-20 (Gruenert). The Defendants further contended that the Northern District of Texas is where Kinley Construction is headquartered, and where monies related to the contract were sent and received. See Tr. at 6:20-7:1 (Gruenert).
David Gorman, BMT Co.’s counsel, responded that the Miller Act’s venue provision is clear on its face that this Court is the exclusive venue for this case. See Tr. at 9.T4-16 (Gorman). Mr. Gorman argued that the cases on which the Defendants rely for the proposition that the Miller Act’s venue provision protects defendants address circumstances in which defendants, not plaintiffs, seek to challenge venue, making them inapposite. See Tr. at 9:16-21 (Gorman). Mr. Gorman further argued that the Defendants should not be able to undermine BMT Co.’s Miller Act rights by first filing in a different venue. See Tr. at 9:25-10:3 (Gorman). Mr. Gorman acknowledged that the United States Court of Appeals for the Tenth Circuit recognizes the first-filed rule as a rule of judicial convenience, but asserted that it applies when other considerations are equal, and that Congress’ express venue provision in the Miller Act trumps the judge-made doctrine. See Tr. at 11:23-12:13 (“Mr. GORMAN: ... I don’t think a court-developed rule of convenience can overcome Congress’ mandate.”).
The parties agreed that this Action and the Texas Action should be tried together. See Tr. at 12:14-20 (Gorman); Tr. at 6:9-22 (Gruenert). The parties also agreed that there is no forum selection clause in the Subcontract. See Tr. at 10:15-16 (“MR. GORMAN: [Tjhere is no forum selection clause....”); Tr. at 11:11 (“MR. GRUENERT: There is not a forum selection clause.... ”).
On August 10, 2011, Judge McBryde granted BMT Co.’s Motion to Transfer Venue. He ordered the Texas Action transferred to the District of New Mexico. See Kinley Constr. Co. v. Brown Minneapolis Tank Co., No. CIV 11-0231-35, Order Transferring Case (N.D.Tex. August 10, 2011). On August 11, 2011, the Texas Action was transferred to the District of New Mexico, and opened as case No. CIV 11-0705.
LAW REGARDING THE MILLER ACT
“[T]he Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project.” F.D. Rich Co., Inc. v. United States ex rel. Indus. Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). See Limerick v. T.F. Scholes, Inc., 292 F.2d 195, 196 (10th Cir.1961)(“Congress enacted the Miller Act to protect persons who supply labor and materials for the construction of federal buildings.”). “[T]he Miller Act ... is ‘highly remedial in nature’ and must be liberally construed ‘to effectuate the Congressional intent to protect those whose labor and materials go into public projects.’ ” Limerick v. T.F. Scholes, Inc., 292 F.2d at 196 (quoting United States ex rel. Sherman v. Carter, 353 U.S. 210, 216, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957)).
“The Miller Act grants federal courts exclusive jurisdiction.” United States ex rel. B & D Mech. Contractors, Inc. v. St. Paul Mercury Ins. Co., 70 F.3d 1115, 1118 (10th Cir.1995)(eiting United States ex rel. Gen. Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 1493 (10th Cir.1995); United States ex rel. Owens-Corning Fiberglass Corp. v. Brandt Constr. Co., 826 F.2d 643, 645 (7th Cir.1987)(discussing how federal courts have unanimously held Miller Act jurisdiction to be exclusively federal), cert. denied, 484 U.S. 1026, 108 S.Ct. 751, 98 L.Ed.2d 764 (1988)).
Before a 2002 amendment, the Miller Act, which was then codified at 40 U.S.C. § 270b(b), stated:
Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by him. The United States shall not be liable for the payment of any costs or expenses of any such suit.
40 U.S.C. § 270b(b)(2000)(emphasis added). Courts disputed whether the Miller Act’s provision that the suit must be brought in the “district in which the contract was to be performed and executed” was a jurisdictional requirement or a venue requirement. In United States Fidelity & Guaranty Co. v. Hendry Corp., 391 F.2d 13, 17 n. 3 (5th Cir.1968), the United States Court of Appeals for the Fifth Circuit stated:
There has been much debate whether 270b(b) is a jurisdiction or a venue statute. We agree with the author of the comment [76 Harv. L. Rev. 635 (1963) ] that the section has both jurisdictional and venue attributes. It is jurisdictional in that clearly it authorizes suit to be brought in the district court. On the other hand, it is not jurisdictional in the sense that actions are limited to the federal court to insure [sic] uniform or sympathetic interpretation of the Act. It is like a venue statute in that it severely limits the number of forums in which the defendant may be required to answer.
391 F.2d at 17 n. 3 (citations omitted). See Tex. Constr. Co. v. United, States ex rel. Caldwell Foundry & Mach. Co., 236 F.2d 138, 140 (5th Cir.1956)(noting that “[t]his precise question [whether the language restricts jurisdiction or venue] has not been decided by any federal court,” and “concluding] that ... the statute is a restriction only on venue rather than on the power of the court to entertain the suit”).
Similarly, in F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., the Supreme Court of the United States rejected the petitioner’s contention that the Miller Act’s language created a jurisdictional requirement and held that it established “merely a venue requirement,” which is satisfied if there is a “sufficient nexus” between the contract and the venue. 417 U.S. at 125, 94 S.Ct. 2157. In that case, the prime contractor, Rich, contracted with the United States to build family housing units at Beale Air Force Base in California. Transmerica Insurance Co., as Rich’s surety, posted a payment bond in accordance with the Miller Act. “Rich then awarded Cerpac two contracts on the project, one to select, modify, detail, and install all custom millwork, and one merely to supply all standard exterior plywood, each contract incorporating by reference terms of the prime contract.” 417 U.S. at 119, 94 S.Ct. 2157. Cerpac, in turn, placed a single order with plaintiff/respondent Industrial Lumber Co. “for all exterior plywood required under its plywood contract for the Beale project.” 417 U.S. at 119, 94 S.Ct. 2157. Rich also had a contract with Cerpac to supply plywood for another government project being constructed in Charleston, South Carolina.
Shortly after Industrial’s shipments began, Rich informed Cerpac that more plywood was needed for the Charleston project. Rich and Cerpac decided to divert lumber from the California project to Charleston.
Accordingly, Industrial was advised to supply a shipment of the plywood called for under its Beale contract with Cerpac to the South Carolina site. Industrial arranged for the wood to be shipped by one of its suppliers to a railhead near Charleston. The shipment diverted to South Carolina was one of 22 called for by Industrial’s Beale Contract. There were several subsequent shipments to the California site under that contract.
417 U.S. at 119, 94 S.Ct. 2157 (footnotes omitted).
Eventually, Cerpac fell behind in its payments to Industrial, and Industrial filed suit against Rich and its surety in the United States District Court for the Eastern District of California. Rich argued, among others things, “that venue for suit on the South Carolina shipment was improper in the Eastern District of California.” 417 U.S. at 120, 94 S.Ct. 2157. The district court rejected Rich’s argument, and granted judgment for Industrial. On appeal, the Supreme Court agreed with the district court’ holding that the Eastern District of California was the appropriate venue in the case:
We ... agree with the courts below that venue under the Miller Act for suit on the shipment diverted to South Carolina properly lay in the Eastern District of California. The Act provides:
‘Every suit instituted under this section shall be brought in ... the United States District Court for any district in which the contract was to be performed and executed and not elsewhere. ...’ 40 U.S.C. s 270b(b).
Petitioners argue that this provision bars a district court in California from adjudicating respondent’s claims arising from the shipments of plywood delivered in South Carolina. But § 270b(b) is merely a venue requirement and there was clearly a sufficient nexus for its satisfaction. The ‘Beale 647’ contract between Cerpac and Industrial was executed in California, all of the materials described therein to be delivered to a worksite in that State. Although one of the 22 shipments made pursuant to the contract was later diverted to South Carolina for petitioner Rich’s convenience, the site for performance of the original contract remained the same for Miller Act purposes. Several shipments to the Beale site were made after the South Carolina shipment. Moreover, petitioners have pointed to no prejudice resulting from the case’s being heard in the California court and considerations of judicial economy and convenience clearly support venue in the District Court where all of respondent’s claims arising from the ‘Beale 647’ contract could be adjudicated in a single proceeding.
417 U.S. at 124-25, 94 S.Ct. 2157 (footnotes omitted)(emphasis added).
In 2002, Congress amended and recodified 40 U.S.C. § 270(b) at 40 U.S.C. § 3133(b)(3) in its current form, which provides:
Venue. — A civil action brought under this subsection must be brought—
(A) in the name of the United States for the use of the person bringing the action; and
(B) in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.
40 U.S.C. § 3133(b)(3)(bold in original). Congress thus made express that the Miller Act’s requirement that suit be filed in the district where the “contract was to be performed” is a venue requirement and not a jurisdictional requirement. While Congress kept the language specifying that an action “must be brought ... in the United States District Court for any district in which the contract was to be performed and executed,” it dropped the “and not elsewhere” language. This change appears to be primarily stylistic, because the statute continues to require that the action “must be brought” in the district where the contract was performed. At most, the change further clarifies that the provision is a venue requirement and not a jurisdictional requirement. Accordingly, the case law construing the Miller Act’s old language continues to control.
It may well be said that where a provision in the subsequent Act is identical with that in the prior law, and no change in other provisions of the new statute indicate an intent by Congress to depart from the court’s construction of the former, such construction should normally be equally binding as though the particular section had itself been construed; unless, of course, the court itself has changed its position.
Tex. Constr. Co. v. United States ex rel. Caldwell Foundry & Mach. Co., 236 F.2d at 140.
Despite the seemingly absolute language of the Miller Act’s venue provision, courts have interpreted it to be a venue requirement that parties may waive. In United States for Use of B & D Mechanical Contractors, Inc. v. St. Paul Mercury Insurance Co., 70 F.3d 1115 (10th Cir.1995), the Tenth Circuit held that a forum selection clause can override the Miller Act’s venue requirement:
Although the language of the Miller Act, 40 U.S.C. § 270b(b), requiring that suits be brought in the judicial district where the contract was performed “and not elsewhere” seems to mandate strict conformance, judicial interpretation holds otherwise. While dealing with the merits of another issue, the Supreme Court characterized § 270b(b) as being “merely a venue requirement.” F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 125, 94 S.Ct. 2157, 40 L.Ed.2d 703 ... (1974). In United States ex rel. Pittsburgh Tank & Tower, Inc. v. G & C Enterprises, Inc., 62 F.3d 35, 36 (1st Cir.1995), the court held a contractual forum selection clause prevailed when it conflicted with the venue designated by the Miller Act. The G & C Enterprises court noted that even though the Supreme Court was not addressing a conflicting forum selection clause in F.D. Rich, the Court’s designation that the statutory language was a mere venue requirement was “explicit and very hard for a lower federal court to ignore.” Id. at 36. This court also finds such a designation hard to ignore. Interestingly, even prior to the F.D. Rich decision, courts deciding the issue had held almost without exception that the provision was a venue requirement. United States ex rel. Capolino Sons, Inc. v. Electronic & Missile Facilities, Inc., 364 F.2d 705, 707 (2d Cir.), cert. denied, 385 U.S. 924, 87 S.Ct. 239, 17 L.Ed.2d 148 ... (1966). It is well settled that venue provisions are subject to contractual waiver. National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315, 84 S.Ct. 411, 11 L.Ed.2d 354 ... (1964).
Three circuits have addressed forum selection clauses that conflict with the Miller Act’s venue provisions. All three have held that as a mere venue requirement, § 270b(b) is subject to contractual waiver by a valid forum selection clause. See FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 1233 (8th Cir.1995) (holding the Miller Act’s venue requirement could be waived by defendants); G & C Enterprises, 62 F.3d at 36; In re Fireman’s Fund Ins. Cos., 588 F.2d 93, 95 (5th Cir.1979) (holding the case for overriding the Miller Act particularly strong where forum selection clause was suggested by defendants — the parties the act was designed to protect).
70 F.3d at 1117. The Tenth Circuit concluded that it was “persuaded by [its] sister circuits and agree[d] that a valid forum selection clause supersedes the Miller Act’s venue provision.” 70 F.3d at 1117. The forum selection clause provided that “[t]he Subcontract Agreement and any claims arising under it shall be governed by the laws of the State of Texas and exclusive venue shall be proper in Bexar County, Texas.” 70 F.3d at 1116. The Tenth Circuit went on to decide that the forum selection clause was invalid, because it provided that a state court would have exclusive jurisdiction over a suit arising under the contract, and, “[although parties are able to contractually alter the Miller Act’s venue provisions, they are not able to change its jurisdictional requirements.” 70 F.3d at 1117.
LAW REGARDING TRANSFER OF VENUE
In 1948, Congress enacted the federal change-of-venue statute, codified at 28 U.S.C. § 1404, to allow a district court to transfer an action filed in a proper, though not necessarily convenient, venue to a more convenient district. That statute provides, in pertinent part: “For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Section 1404(a) affords a district court broad discretion to adjudicate motions to transfer based on a case-by-case review of convenience and fairness. See Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991). “Recognizing that what is convenient for one litigant may not be convenient for the other, the Supreme Court has taught that section 1404(a) “is intended to place discretion in the district court to adjudicate motions for transfer according to [a] ‘... case-by-case consideration of convenience and fairness.’”” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir.2010) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). “The statutory language guides the court’s evaluation of the particular circumstances of each case and is broad enough to allow the court to take into account all factors relevant to convenience and/or the interests of justice.” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d at 977. The statute permits a “flexible and individualized analysis,” and affords district courts the opportunity to look beyond a narrow or rigid set of considerations in their determinations. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. at 29, 108 S.Ct. 2239.
Among the factors [a district court] should consider is the plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious and economical.
Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d at 1516 (internal quotation marks omitted). See Texas Gulf Sulphur v. Ritter, 371 F.2d 145, 147 (10th Cir.1967)(stating the factors that courts consider in making a venue determination under § 1404(a)).
The “interest of justice” is a separate element of the transfer analysis that relates to the efficient administration of the court system. Van Dusen v. Barrack, 376 U.S. at 626-27, 84 S.Ct. 805. “For this element, courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums; each court’s relative familiarity with the relevant law; the respective desirability of resolving controversies in each locale; and the relationship of each community to the controversy.” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d at 977 (citations omitted). In some circumstances, “[t]he interest of justice may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result.” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d at 977 (citing Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220-21 (7th Cir.1986)).
LAW REGARDING THE FIRST-TO-FILE RULE
“[T]he ‘first to file’ rule .... pertains when two district courts have jurisdiction over the same controversy, affording deference to the first filed lawsuit.” Lipari v. U.S. Bancorp NA, 345 Fed.Appx. 315, 317 (10th Cir.2009).
Federal courts have recognized that, as courts of coordinate jurisdiction and equal rank, they must be careful to avoid interfering with each other’s affairs in order “to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result.” Sutter Corp. v. P & P Indus., Inc., 125 F.3d 914, 917 (5th Cir.1997) (quotation omitted). To aid in achieving this goal, the “first-to-file” rule permits a district court to decline jurisdiction where a complaint raising the same issues against the same parties has previously been filed in another district court. All-trade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 625 (9th Cir.1991). However, “simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982). We review the district court’s decision whether to rely on the first-to-file rule only for abuse of discretion. Alltrade, 946 F.2d at 625.
Buzas Baseball, Inc. v. Bd. of Regents of Univ. Sys. of Ga., 189 F.3d 477, at *2 (10th Cir.1999)(table).
Courts do not mechanically apply the first-to-file rule, but “the court which first obtains jurisdiction should be allowed to first decide issues of venue.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982). A district court may decline to follow the first-to-file rule and dismiss a declaratory judgment action if that action was filed for the purpose of anticipating a trial of the same issues in a court of coordinate jurisdiction. See Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749 (7th Cir.1987)(stating that, where declaratory judgment action is filed in anticipation of trademark infringement action, the “infringement action should proceed, even if filed” after the declaratory judgment action); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
In Hospah Coal Co. v. Chaco Energy Co., the Tenth Circuit reversed and remanded a district court’s preliminary injunction order with instructions for the district court to dismiss that action so that the court in which the matter was first filed could first decide issues of venue. The Tenth Circuit stated:
Both parties recognize the general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case. O’Hare International Bank v. Lambert, 459 F.2d 328 (10th Cir.1972), and cases cited therein.
This circuit has adopted the rule announced in Barber-Greene Company v. Blaw-Knox Company, 239 F.2d 774, 778 (6th Cir.1957) that, “in both in rem and in personam actions, jurisdiction relates back to the filing of the complaint.” Accord, Product Engineering and Manufacturing, Inc. v. Barnes, 424 F.2d 42 (10th Cir.1970). The rule that jurisdiction relates back to the filing of the complaint gives effect to Fed. Rules Civ. Proc. rule 3, 28 U.S.C.A., which provides that, “(a) civil action is commenced by filing a complaint with the court.”
[Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952),] stands for the proposition that simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case. However, in Kerotest the Court pays great deference to the district court’s ability to decide if it should accept venue. We believe that Kerotest is in line "with our view that the court which first obtains jurisdiction should be allowed to first decide issues of venue.
In Research Automation, Inc. v. Schrader-Bridgeport Intern., Inc., the United States Court of Appeals for the Seventh Circuit explained:
In an effort to defeat the transfer analysis, [the plaintiff] Research Automation maintains that [the defendant’s] Schrader-Bridgeport’s motion must fail because a plaintiffs choice of forum is afforded deference so long as the chosen forum is related to the case. See [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)] (“[U]nless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.”). But where, as here, the case involves two identical suits in distinct venues, this factor loses its significance entirely: each case has a plaintiff, and one of them will necessarily be disturbed. The district court was right to discount this element in this context.
Since [Martin v. Graybar Electric Co., 266 F.2d 202, 204 (7th Cir.1959),] ... we have made clear that ... — where the parallel cases involve a declaratory judgment action and a mirror-image action seeking coercive relief — we ordinarily give priority to the coercive action, regardless of which case was filed first. In those cases, we have repeatedly taught that this circuit does not rigidly adhere to a first-to-file rule. Even in Graybar Electric, we noted that any mechanical solution of such a problem would not be “[w]ise judicial administration.” 266 F.2d at 203, quoting Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 ... (1952).
Courts have also departed from a first-to-file rule where one party files its lawsuit in anticipation of an impending suit by the opposing party. See, e.g., Schwarz v. National Van Lines, Inc., 317 F.Supp.2d 829, 833 (N.D.Ill.2004) (finding that where a plaintiff files an action “in the face of a clear threat” that the opposing party will sue, a court will dismiss a first-to-file argument). This type of behavior only exacerbates the risk of wasteful litigation.
This court has “never laid down an inflexible rule that the prior filing controls.” Warshawsky & Co. v. Arcata National Corp., 552 F.2d 1257, 1265 (7th Cir.1977). Research Automation relies on language from Asset Allocation & Management Co. v. Western Employers Insurance Co., 892 F.2d 566 (7th Cir.1989), stating that there is a rebuttable presumption that the first case should proceed, “subject to the principles that govern requests for transfer to a more convenient forum.” 892 F.2d at 573. The Asset Allocation opinion also said that a district court has “a power, [but] not a duty,” to enjoin a second-filed case. Id. at 572. In our view, the Asset Allocation court’s intended meaning is clear: the first-filed case may proceed where the principles that govern requests for transfer do not indicate otherwise. We reiterate our holding in Tempco Electric that, although a first-to-file rule would have the “virtue of certainty and ease of application, ... the cost — a rule which will encourage an unseemly race to the courthouse ... — is simply too high.” 819 F.2d at 750.
Our approach is not unique in this respect. The other circuits have developed similar practices. Though the Eleventh Circuit has made reference to a “strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule,” and has “require[d] that the party objecting to jurisdiction in the first-filed forum carry the burden of proving ‘compelling circumstances’ to warrant an exception” to the rule, Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir.2005) (citations omitted), we do not find as strong support among our sister circuits. Most maintain the rule as a guiding principle to be left to the discretion of the district court. For example, though the Third Circuit refers to a first-to-file rule, it is “not a mandate directing wooden application of the rule____District courts have always had discretion to retain jurisdiction given appropriate circumstances justifying departure from the first-filed rule.” EEOC v. University of Pennsylvania, 850 F.2d 969, 972 (3d Cir.1988). The Sixth and D.C. Circuits have adopted the same reasoning. See Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 551 (6th Cir.2007) (finding that the first-to-file rule is “not a strict rule” and that district courts “have the discretion to dispense with [it] where equity so demands”), quoting AmSouth Bank v. Dale, 386 F.3d 763, 791 n. 8 (6th Cir.2004), and Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Associates, Inc., 16 Fed.Appx. 433, 437 (6th Cir.2001); Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 350 (D.C.Cir.2003) (emphasizing that district courts should balance equitable considerations rather than use “a mechanical rule of thumb”) (citation and quotation marks omitted).
The Fourth and Fifth Circuits have also indicated that courts should consider the filing chronology as part of the transfer calculus. See West Gulf Maritime Association v. ILA Deep Sea Local 21, 751 F.2d 721, 728-32 (5th Cir.1985) (discussing first-to-file as a general principle for the discretion of the district court in deciding whether to transfer); Ellicott Machine Corp. v. Modem Welding Co., 502 F.2d 178, 181-82 (4th Cir.1974).
The Ninth Circuit has noted that the first-to-file rule is “not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration.” Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir.1982). The Eighth Circuit has likewise treated the timing of filing as an element “to be applied in a manner best serving the interests of justice,” serving as a guide to the court’s discretion “absent compelling circumstances.” Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1005 (8th Cir.1993), quoting United States Fire Insurance Co. v. Goodyear Tire & Rubber Co., 920 F.2d 487 (8th Cir.1990).
The First, Second, and Tenth Circuits maintain substantial support for the rule, but they too have left room for discretion. See Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir.2000) (noting that the first-filed action is “generally preferred”), quoting Cianbro Corp. v. Curran — Lavoie, Inc., 814 F.2d 7 (1st Cir.1987); Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982) (holding that “the court which first obtains jurisdiction should be allowed to first decide issues of venue,” but that this “does not necessarily mean that it should decide the merits of the case”).
Research Automation relies on Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549 (S.D.N.Y.2000), to argue that the party filing second has a burden to demonstrate “special circumstances” in order to overcome the first-to-file rule. We decline to impose such a burden. Notwithstanding that the Second Circuit adheres more closely to a first-to-file principle than other circuits. 626 F.3d at 979-82 (footnotes and some citations omitted).
ANALYSIS
The Court denies the Defendants’ Motion. Courts interpret the Miller Act’s venue provision liberally, and there does not appear to be any sound reason in this case not to give effect to Congress’ intent that Miller Act cases be brought where the contract was to be performed and executed. Accordingly, the Court will not transfer this case. Moreover, Judge McBryde granted BMT Co.’s Motion to Transfer Venue, and transferred the Texas Action to the District of New Mexico. Consequently, there is no longer a sound reason to transfer the case to the Northern District of Texas.
I. THE TEXAS ACTION INVOLVES IDENTICAL OR SUBSTANTIALLY OVERLAPPING ISSUES AS THIS ACTION.
The Defendants contend that this action presents duplicative or substantially identical facts as the Texas Action. They therefore argue that the Court should dismiss this action or transfer venue to the Northern District of Texas. BMT Co. does not dispute that the facts in this case involve identical or substantially overlapping issues as the Texas Action. Indeed, BMT Co. asserts in its Motion to Transfer Venue that it filed in the Texas Action that the Texas Action should be consolidated with this action, because the actions “involv[e] the same parties, the same contract and the same incident.” Motion to Transfer Venue at 1. BMT Co. argues that, pursuant to the Miller Act, the District of New Mexico has “exclusive venue” for its Miller Act claim. Response at 1.
“[T]he ‘first-to-file’ rule permits a district court to decline jurisdiction where a complaint raising the same issues against the same parties has previously been filed in another district court.” Buzas Baseball, Inc. v. Bd. of Regents of Univ. Sys. of Ga., 189 F.3d 477, at *2 (citations omitted). See Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir.1999). “[I]n determining whether to dismiss an action, the court must answer two questions: (1) are the two pending actions so duplicative or involve substantially similar issues that one court should decide the issues; and (2) which of the two courts should resolve the case?” Excel Music, Inc. v. Simone, No. 95-3626, 1996 WL 5708, at *5 (E.D.La. Jan. 5, 1996) (citing Texas Instruments, Inc. v. Micron Semiconductor, Inc., 815 F.Supp. 994, 997 (E.D.Tex.1993)). Generally, the issues presented in two separate actions need not be identical to allow one court to decide the action, “but there must be substantial overlap between the two suits.” Excel Music, Inc. v. Simone, 1996 WL 5708 at *5. The two cases must have such a common identity that a determination in one action leaves little or nothing to be determined in the other. See Thermal Dynamics Corp. v. Union Carbide Corp., 214 F.Supp. 773, 774 (S.D.N.Y.1963). In the present case, there is no doubt that there would be nothing left to try in this action if the Northern District of Texas resolves that Texas Action. Should the court in Texas conclude that BMT Co. was at fault for failing to timely complete its work, thereby damaging Kinley Construction, the Miller Act claim necessarily would be moot. Similarly, if this Court concluded that BMT Co. was not responsible for the fuel tanks’ collapse and the resulting delays, then Kinley Construction’s claims in the Texas Action would be moot.
II. THE MILLER ACT’S VENUE PROVISION IS NOT JUST FOR THE DEFENDANTS’ PROTECTION.
Because the issues in this action and the Texas Action are identical or substantially overlapping, the question becomes which court should decide the issue. The Defendants contend that “[t]he court with prior jurisdiction over the common subject matter should resolve all issues presented in related actions.” W. Gulf Mar. Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 730 (5th Cir.1985). BMT Co. responds that the Miller Act’s venue provision prevails over the fírst-to-file rule. The Court believes that the Miller Act’s venue provision, which requires that a Miller Act claim be filed in the district where the contract was to be performed, prevails over the judicial doctrine favoring keeping a suit in the first court that has jurisdiction. The Court agrees that either no forum non conveniens analysis applies in light of a Miller Act’s venue provision, or, in the alternative, that the Miller Act’s venue provision is a “special circumstance” that prevails over the first-filed rule, Hoffman v. Blaski, 363 U.S. 335, 352, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960)(“Section 1404(a) was devised to avoid needless hardship and even miscarriage of justice by empowering district judges to recognize special circumstances calling for special relief.”); especially where, as here, the forum non conveniens analysis is a “is a wash,” Tr. at 8:19-20 (Gruenert).
The Defendants contend that the Miller Act’s venue provision benefits only defendants. The plain language of the Miller Act’s venue provision, which states that an action under it “must be brought ... 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)(B), does not suggest such a limited reading. The Defendants cite two cases in support of this contention. The Defendants assert the Fifth Circuit “stated that the venue provision was enacted ‘for the benefit of the defendants, not the plaintiffs.’” Reply at 2 (quoting United States ex rel. Harvey Gulf Int’l Marine, Inc. v. Md. Cas. Co., 573 F.2d 245, 248 (5th Cir.1978)). They also cite United States ex rel. Benefit of Bailey-Lewis-Williams of Fla., Inc. v. Peter Kiewit Sons Co. of Canada, Ltd., 195 F.Supp. 752 (D.D.C.1961), in support of the contention that “courts have treated the Miller Act venue provision as an election for the defendant to assert or waive.” Reply at 2. After a careful review of these cases, and the Fifth Circuit’s opinion in Texas Construction Co. v. United States ex rel. Caldwell Foundry & Machine Co., on which these cases are based, the Court is unconvinced by this non-binding authority.
In United States ex rel. Benefit of Bailey-Lewis-Williams of Fla., Inc. v. Peter Kiewit Sons Co. of Canada, Ltd., the United States District Court for the District of Columbia addressed a surety’s motion to dismiss a Miller Act claim. The surety argued that, because the contract was performed in Canada, the district court lacked jurisdiction over the suit. The district court rejected this argument, holding in part that the Miller Act provided a venue requirement, not a jurisdictional prerequisite, and that the District of Columbia was, out of necessity, an appropriate venue to provide the plaintiff with the relief the Miller Act was meant to provide:
The provision in the Miller Act as to suit being brought in the United States District Court where the contract was to be performed and executed relates to venue rather than to the power of the court to entertain suit. Such a venue provision confers a personal privilege on a defendant which may be asserted or waived at the election of the defendant, and is waived if, when sued in some district other than the one where venue is laid, the defendant enters an appearance without claiming such privilege. Lee v. Chesapeake & Ohio Ry., 260 U.S. 653, 43 S.Ct. 230, 67 L.Ed. 443 ... [1923]; Texas Construction Co. v. United States, 5 Cir., 286 F.2d 138 (1956).
The conclusions of the Court are as follows: That the plaintiff as a supplier of labor and material on federal construction has been given by the Miller Act a right to sue the defendant surety on the payment bond; that this court has jurisdiction; that the Miller Act is highly remedial and is to be construed liberally to effect the object intended by Congress; that the provision in the Act that suit be brought ‘in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere’ relates to venue and is controlling when capable of application; that the formula for the place of suit as set forth in the venue provision is meaningless and incapable of application here; and therefore that the said venue provision should be construed as containing an exception in respect of suit such as this where the contract was to be performed and executed in a foreign country having no United States District Court. Accordingly it is the view of the Court that the instant suit is maintainable.
195 F.Supp. at 755, 756 (footnotes omitted). The district court did not address a plaintiffs attempt to invoke or waive the Miller Act’s venue provision, and the district court did not say that the provision confers a privilege only on defendants. Instead the district court, to preserve the Miller Act’s benefits for the plaintiff, “construed [the Miller Act] as containing an exception in respect of suit such as this where the contract was to be performed and executed in a foreign country having no United States District Court.” 195 F.Supp. at 756. The district court thus held that it had venue by necessity, as did the United States Court of Appeals for the D.C. Circuit when it affirmed the district court sub nom, in Indemnity Ins. Co. of North America v. United States ex rel. Bailey-Lewis-Williams of Fla., Inc., 299 F.2d 930 (D.C.Cir.1962), stating:
On the basis of the well-reasoned opinion of District Judge Matthews, 195 F.Supp. 752 (1961), the order will be affirmed. We add only that venue was properly laid in the District of Columbia, as the surety company was licensed to do business and does business here, see 28 U.S.C. § 1391 (1958), and as no other judicial district in the United States was suggested as an alternative forum. Cf. United States for Use and Benefit of Bryant Electric Co., Ltd. v. Aetna Casualty & Surety Co., 297 F.2d 665 (2d Cir.1962).
299 F.2d at 931. See United States ex rel. Bryant Elec. Co. v. Aetna Cas. & Sur. Co., 297 F.2d 665, 669 (2d Cir.1962)(similarly rejecting a defendant’s argument that the United States District Court for the Southern District of New York lacked jurisdiction over a Miller Act claim based on a contract performed in Canada).
The D.C. District Court relied on the Supreme Court’s decision in Lee v. Chesapeake & Ohio Ry., which was not a Miller Act case, and the Fifth Circuit’s opinion in Texas Construction Co. v. United States ex rel. Caldwell Foundry & Machine Co., which cited Lee v. Chesapeake & Ohio Ry., in support of its interpretation of the Miller Act. In Lee v. Chesapeake & Ohio Ry., the Supreme Court addressed whether a defendant’s general appearance waives objections to improper venue under the Judicial Code and whether a plaintiff may object to the venue to which the defendant removes a case. The plaintiff was a citizen and resident of Texas, and the defendant a corporate citizen and resident of Virginia. The plaintiff began the action in a state court in Bracken County, Kentucky. The defendant removed the case, based on diversity of citizenship, to the United States District Court for the Eastern District of Kentucky, which included Bracken County. The plaintiff moved the district court to remand to the state court, arguing that the federal district court was without jurisdiction, because neither party was a resident of that district. The district court entered judgment for the defendant, and the plaintiff appeal on a writ of error.
The Supreme Court first concluded that the district court had diversity jurisdiction over the suit. The Supreme Court next turned to the question whether the district court was the appropriate forum:
Section 51 of the Code (Comp. St. § 1033) relates to the venue of suits originally begun in those courts, and provides, subject to exceptions not material here, that—
‘ * * * No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.’
It is a necessary conclusion from repeated decisions, going back to the original Judiciary Act of 1789 (1 Stat. 73) that this provision does not limit the general jurisdiction of the District Courts or withdraw any suit therefrom, but merely confers a personal privilege on the defendant, which he may assert, or may waive, at his election, and does waive if, when sued in some other district, he enters an appearance without claiming his privilege.
Section 51 ... merely regulates the place of suit, its purpose being to save defendants from inconveniences to which they might be subjected if they could be compelled to answer in any district, or wherever found. Like similar state statutes, it accords to defendants a privilege which they may, and not infrequently do, waive.
It will be perceived that the right of removal under section 28 arises whenever a suit within the general jurisdiction of the District Courts is begun in ‘any’ state court, and also that the party to whom the right is given is designated in direct and unequivocal terms. Where the suit arises under the Constitution, or a law or treaty, of the United States, the right is given to ‘the defendant or defendants’ without any qualification; and as to ‘any other suit’ it is given to ‘the defendant or defendants,’ if he or they be ‘nonresidents of that state. ’ In neither instance is the plaintiffs assent essential in any sense to the exercise of the right. Nor is it admissible for him to urge that the removal be into the District Court for some other district, for it is his act in bringing the suit in a state court within the particular district which fixes the venue on removal.
260 U.S. at 655, 657, 43 S.Ct. 230 (citations omitted)(emphasis added). The Supreme Court thus held that, because “removals are had only at the ins[is]tance of defendants,” the removal statute “confers a personal privilege on the defendant, which he may assert, or may waive, at his election.” 260 U.S. at 655, 657, 43 S.Ct. 230. Unlike the Miller Act, the Judicial Code expressly vested the right of removal in only “the defendant or defendants.” 260 U.S. at 657, 43 S.Ct. 230 (quoting 28 Stat. 1010). See 28 U.S.C. § 1441 (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants____”).
In Texas Construction Co. v. United States ex rel. Caldwell Foundry & Machine Co., the Fifth Circuit, in construing the Miller Act’s venue provision, quoted the Supreme Court’s decision in Lee v. Chesapeake & Ohio Ry. The Fifth Circuit decided, as a matter of first impression for the federal judiciary, whether the Miller Act’s requirement that an action be brought in the “district in which the contract was to be performed and executed and not elsewhere” was a restriction on venue or jurisdiction. 236 F.2d at 140 (“This precise question has not been decided by any federal court.”). The Fifth Circuit held that the Miller Act’s language “is a restriction only on venue rather than on the power of the court to entertain the suit.” 236 F.2d at 140. After the district court entered judgment in favor of the plaintiff, the defendant/appellant appealed, arguing in part that 40 U.S.C. § 270b (2000) “is a jurisdictional as distinguished from a venue statute.” 236 F.2d at 140. The plaintiff/appellee argued the statutory language “merely gave the defendant in such a suit the right to object if a suit was brought in another district, but did not restrict the power of the court to act if no such objection was made”:
Both parties ... eoncede[d] that, upon proper motion, the defendant in a case brought in a district other than that in which the contract was to be performed could require a dismissal of the action as being in the wrong venue. Appellants also concede[d] that if the Court h[eld] this to be a venue statute rather than one affecting jurisdiction of the Court, then their failure to move by timely motion to attack the venue would be fatal to their cause here.
The Fifth Circuit relied in part on Supreme Court precedent interpreting the “Heard Act, a predecessor to the Miller Act, and one which had as its purpose the same end of protecting unpaid subcontractors and materialmen on government contracts.” 236 F.2d at 140. The Fifth Circuit noted that in United States v. Congress Construction Co., 222 U.S. 199, 32 S.Ct. 44, 56 L.Ed. 163 (1911), the Supreme Court interpreted a provision of the Heard Act:
The Heard Act that was in effect before being superseded by the Miller Act in 1935, also sought to protect the United States and all persons supplying labor or materials on public works. It achieved this result, somewhat imperfectly, by providing for a single bond on which the United States alone could sue during the first six months, with the right of others to intervene, but on which any one creditor could file suit in the name of the United States after expiration of six months. Only one such suit could be filed by the entire group of creditors and the one on first filing was required to give notice by publication in a newspaper of general circulation, published in the state or town where the contract was being performed, and was also required to give personal notice to all known creditors. The comparable language of the Heard Act to that here in issue also provided that such creditor was ‘authorized to bring suit in the * * * (district) court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit, and not elsewhere. * * *’ 33 Stat. 812.
In the Congress Construction Company case, supra, the Supreme Court had this clause for construction. The suit in the case was filed in a district other than that in which the contract was to be performed. The defendant in that case filed a plea to the jurisdiction. The trial court sustained this plea and an appeal was taken direct to the Supreme Court of the United States under the then existing law which permitted appeals direct to that court where ‘jurisdiction’ was involved. The Supreme Court there said:
‘Considering the purpose of the statute, as manifested in these provisions, we think the restriction-respecting the place of suit was intended to apply, and does apply, to all actions brought in the name of the United States, for the purpose only of securing an adjudication and enforcement of demands for labor or materials, whether instituted by the United States or by the creditors themselves.’ .... 222 U.S. 199, 203, 32 S.Ct. 44....
A careful reading of this case discloses the fact that the question the Court there had to decide was whether the particular provision of the Heard Act superseded the provisions of the General Jurisdictional Act, then in effect, 25 Stat. 433, c. 866, § 1, and not whether, if it did, it was a question of ‘jurisdiction,’ as now understood, as contrasted to venue.
Having decided that the Supreme Court’s decision in United States v. Congress Construction Co. did not decide whether the statutory provision was jurisdictional, the Fifth Circuit found guidance in Lee v. Chesapeake & Ohio R. Co. The Fifth Circuit stated:
[T]he Court, in Lee v. Chesapeake & Ohio R. Co., supra, was construing a section of the statute which appears to us to be as positive a limitation on the place where a suit could be brought as is the language in the Heard and Miller Acts. There, the Court in construing Section 51 of the then Judicial Code, found the following language:
‘ * * * No civil suit shall be brought