Contract – Construction – Miller Act – Surety – Proper Party – Forum Selection Clause

United States ex rel. Landmark Construction Co. v. LW Construction of Charleston, LLC (Lawyers Weekly No. 002-119-14, 5 pp.) (Cameron McGowan Currie, Sr. J.) 3:14-cv-00542; D.S.C.

Holding: Since the labor and material payment bond at issue binds both the principal (LW Construction) and the surety (Travelers Casualty), it was plaintiff’s right to sue either LW Construction or Travelers Casualty or both on its Miller Act Claim. Consequently, LW Construction is a proper defendant on the Miller Act claim.

Defendants’ motions to dismiss and to stay are denied.

The forum selection clause in plaintiff’s subcontract reads, in relevant part, “The exclusive forum for the resolution of disputes under this agreement shall be the court of Common Pleas, Non-Jury Term, for Charleston County, South Carolina.” A number of courts have found forum selection clauses invalid and unenforceable as to Miller Act claims because such provisions deprive the federal court of its exclusive jurisdiction under the Miller Act. For the reasons addressed in such decisions, this court finds the forum selection clause at issue here, which expressly limits venue to a state-court forum, invalid as to the Miller Act claim.

The court reaches the same conclusion as to the state law breach of contract claim. It would be unreasonable to apply the forum selection clause to dismiss the state law claims while the Miller Act claim remains pending in federal court.