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Engineering/Remediation Resources Group, Inc. v. Performance Systems, Inc.

United States District Court, D. Idaho

September 7, 2017

ENGINEERING/REMEDIATION RESOURCES GROUP, INC. Plaintiff,
v.
PERFORMANCE SYSTEMS, INC., Defendant.

          MEMORANDUM DECISION AND ORDER

          EDWARD J. LODGE, UNITED STATES DISTRICT JUDGE

         Pending before the Court in the above-entitled matter is Plaintiff's Application for Prejudgment Writ of Attachment and Temporary Restraining Order (“Application for Writ and TRO”). (Dkt. 3.) As further discussed below, the Court grants in part Plaintiff's Application for Writ of Attachment and will hold a show cause hearing on that Application. The Court denies Plaintiff's Motion for Temporary Restraining Order.

         PROCEDURAL HISTORY

         On August 2, 2017, the Plaintiff filed a Complaint with a single breach of contract claim. (Dkt. 1.) Plaintiff seek economic damages, including compensatory damages, incidental damages, attorneys fees and costs, pre- and post- judgment, and any “such further relief as the Court deems just and proper.” Id. Also on August 2, 2017, Plaintiff filed the instant Application for Writ and TRO. (Dkt. 3).

         On August 14, 2017, Plaintiff filed an Affidavit of Service indicating that the Summons, Complaint, and Application for Writ and TRO, among other documents, were served upon the Defendant's Registered Agent. (Dkt. 8). Although the Defendant had not yet appeared, the Court issued an expedited briefing schedule on the Application for Writ and TRO in the event Defendant was otherwise following the docket in this case. Defendant has still not appeared.

         BACKGROUND

         The instant background comes exclusively from the Plaintiff's Complaint and the Affidavit of David Cavagnol (“Cavagnol Aff.”). (Dkts. 1, 3-2.) Plaintiff is a California corporation with its principal place of business in Martinez, California. Defendant is an Idaho corporation with its principal place of business in Meridian, Idaho.

         Plaintiff has a separate, primary contract with non-party, American Samoa Power Authority. On or about July 14, 2016, Plaintiff and Defendant entered into a written Subcontract Agreement. Pursuant to the Subcontract Agreement, Defendant agreed to supply and install two 200, 000 gallon welded water storage tanks in Malaemi, American Samoa. In return, Plaintiff agreed to pay Defendant a total of $1, 178, 388.00, including a progress payment of $357, 062.40.

         Plaintiff represents that it fully performed its contractual obligations to date. In contrast, Defendant breached the contract by: (1) failing to pay its subcontractor for fabrication of the two welded storage tanks; (2) failing to complete fabrication of the tank accessories; and (3) by confirming verbally to Defendant on April 4, 2017 that it was unable to perform any further work on the Subcontract Agreement.

         Due to Defendant's nonperformance under the Subcontract Agreement, Plaintiff is now required to pay other suppliers to fulfill its contractual requirements under its Prime Contract with American Samoa Power Authority. In addition, it has not enjoyed any benefits resulting from the $357, 062.40 payment.

         As further set forth in the Application for Writ and TRO and supporting affidavit, Defendant's performance under the contract was “not secured by a mortgage, deed of trust, security interest, or lien upon real or personal property.” (Dkt. 3-2). Further, Plaintiff represents that the “attachment is not sought and the action is not prosecuted to hinder, delay, or defraud any creditor of PSI.” Id.

         DISCUSSION

         1. Application for Writ of Attachment

         Under federal procedural law, a motion for writ of attachment is governed by the laws of the state where the district court in which the motion is filed is located, except that a federal statute will govern if one otherwise exists and applies. ...


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