United States District Court, S.D. Indiana, Indianapolis Division
AZTEC ENGINEERING GROUP, INC., TECNICA Y PROYECTOS S.A., Plaintiffs,
LIBERTY MUTUAL INSURANCE COMPANY, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, XL SPECIALTY INSURANCE COMPANY, AMERICAN HOME ASSURANCE COMPANY, Defendants.
ORDER DENYING MOTION TO INTERVENE
Jane Magnus-Stinson, Chief Judge.
action, Plaintiffs Aztec Engineering Group, Inc., and Tecnica
y Proyectos S.A. (collectively,
“Aztec-TYPSA”) seek payment from
Defendants Liberty Mutual Insurance Company, Fidelity and
Deposit Company of Maryland, XL Specialty Insurance Company,
and American Home Assurance Company (collectively, the
“Co-Sureties”) pursuant to a payment
bond issued on a 21-mile portion of the I-69 development
project. Isolux-Corsán, LLC
(“Isolux-Corsán”) wants to
intervene to assert a counterclaim against Aztec-TYPSA and
then seek to stay this litigation to pursue arbitration.
[Filing No. 35.] For the reasons that follow, the
Court denies Isolux-Corsán's request to intervene.
timely motion, the Court must permit anyone to intervene as a
matter of right who “claims an interest relating to the
property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately
represent that interest.” Fed. R. Civ. Pro. 24(a)(2).
If the movant does not have a right to intervene, the Court
may exercise its discretion to permit intervention if the
movant “has a claim or defense that shares with the
main action a common question of law or fact.” Fed. R.
Civ. Pro. 24(b)(1)(B). In doing so, however, the Court
“must consider whether the intervention will unduly
delay or prejudice the adjudication of the original
parties' rights.” Fed. R. Civ. Pro. 24(b)(3).
Permissive intervention and intervention as a matter of right
both must be pursued through a timely motion.
Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719
F.3d 785, 797-98 (7th Cir. 2013).
April 8, 2014, the Indiana Finance Authority
(“IFA”) awarded I-69 Development
Partners LLC (the “Developer”) a
Public-Private Agreement (the “PPA”)
pursuant to Indiana Code § 8-15.5-1-1, et seq.,
for the Developer to design, build, finance, operate, and
upgrade approximately 21 miles of existing State Road 37 into
an interstate highway (the “Project”).
[Filing No. 1 at 3.] Corsan Corviam
Construcción, SA (“Corsan”),
entered into a Design-Build Contract with the Developer for
the design and construction work of the Project. [Filing
No. 1 at 4.] Corsan later assigned the Design-Build
Contract to its affiliate, Isolux-Corsán. [Filing
No. 1 at 4.]
to the terms of the PPA and the Design-Build Contract,
Isolux-Corsán later executed a payment bond (the
“Payment Bond”) with the Co-Sureties in
the penal sum of $15, 350, 000 to ensure that payment would
be made to Isolux-Corsán's subcontractors on the
Project. [Filing No. 1 at 4; Filing No.
Engineering Services Agreement
August 15, 2014, Corsan entered into an Engineering Services
Agreement (the “ESA”) with Aztec-TYPSA
for Aztec-TYPSA to be a design-consultant subcontractor on
the Project. [Filing No. 1 at 4; Filing No.
1-4.] The ESA was assigned by Corsan to
Isolux-Corsán. [Filing No. 1 at 4; Filing
No. 1-5 at 1.] Aztec-TYPSA assumed various obligations
under the ESA to perform design-related services on the
Project. [Filing No. 1-4 at 8.] Pursuant to the ESA,
Isolux-Corsán was permitted to withhold payment if it
disputed “any items . . . for any reason, including the
lack of supporting documentation or suspected defective or
negligently performed Services . . . .” [Filing No.
1-4 at 17.] If it disputed items, Isolux-Corsán
was to withhold payment for the disputed items, promptly
notify Aztec-TYPSA of the dispute, and request clarification
or remedial action. [Filing No. 1-4 at 17.] Payment
for undisputed items was to be made within sixty days,
although full or partial payment was not evidence of
Aztec-TYPSA's satisfactory performance of the services
covered by the ESA. [Filing No. 1-4 at 17.]
submitted invoices to Isolux-Corsán and alleges that
until April 2015, the majority of them were not disputed or
only partially disputed. [Filing No. 1 at 5.]
Aztec-TYPSA contends, however, that since April 2015,
Isolux-Corsán failed to make the required payments
within the sixty-day period. [Filing No. 1 at 5.]
Aztec-TYPSA alleges that it served Isolux-Corsán with
a notice of default in April 2015, but Isolux-Corsán
made payment and cured that default. [Filing No. 1 at
6.] Aztec-TYPSA served Isolux-Corsán with a
second notice of default on March 21, 2016, listing twenty
unpaid invoices totaling $4, 811, 869.62. [Filing No. 1
at 6-7; Filing No. 1-6 at 1-2.]
Isolux-Corsán made partial payments, [Filing No. 1
at 7], but Aztec-TYPSA served it with a third notice of
default on June 9, 2016 after additional amounts became
overdue, [Filing No. 1 at 7; Filing No.
1, 2016, Aztec-TYPSA suspended services under the ESA.
[Filing No. 1 at 5.] It alleges that to date,
Isolux-Corsán owes it an outstanding balance of $4,