Civil Practice – Statute of Limitations – Miller Act – Breach of Contract – Subcontractor’s Continued Performance

United States ex rel. Burkholder v. Connelly (Lawyers Weekly No. 12-02-0975, 11 pp.) (James C. Fox, Sr.J.) 5:11-cv-00445; E.D.N.C.

Holding: Even though a second-tier subcontractor who was hired by plaintiff — a first-tier subcontractor — continued to work after the prime contractor ordered plaintiff off the construction site, the statute of limitations started running when plaintiff was ousted from the site, not when the second-tier subcontractor finished his work a few days later.

Defendants’ motion to dismiss is granted.

Plaintiff’s contract was terminated on Aug. 23, 2010. Plaintiff filed this action on Aug. 23, 2011, one day late.

The second-tier subcontractor’s performance of labor after Aug. 23, 2010 does not extend the trigger date for plaintiff’s one-year Miller Act limitation period. The parties have not directed the court’s attention to a case in which the performance by a second-tier subcontractor who is not a party to a Miller Act lawsuit can extend the one-year limitation period for such a suit by the first-tier subcontractor who is a party.