Case 2:15-cv-02215-NVW Document 1 Filed 11/03/15 Page 1 of 8

1 Jaburg & Wilk, P.C.

3200 N. Central Avenue, 20th Floor
2 Phoenix, AZ 85012
602.248.1000
3
Thomas S. Moring (021247)
4 tsm@jaburgwilk.com
Mark D. Bogard (018247)
5 mdb@jaburgwilk.com
6 Attorneys for use-Plaintiff, Ronald James Strayer,
dba Strayer Electric
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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

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United States of America, for the use

and benefit of Ronald James Strayer, dba Case No.
Strayer Electric, a sole proprietorship,
Plaintiff,

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COMPLAINT

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v.

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Eco Clean Solar, Inc., fka Sunwize

Technologies, Inc., a Delaware
corporation; Westchester Fire Insurance
Company, a Pennsylvania corporation,

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(Miller Act Payment Bond)

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Defendants.

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For his cause and Complaint against Defendants, use-Plaintiff Ronald James

20 Strayer alleges as follows:

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NATURE OF ACTION

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PARTIES, JURISDICTION, AND VENUE

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1.

This is a civil action seeking monetary damages for nonpayment of use-

24 Plaintiffs construction labor, materials, and services furnished on a federal construction

25 project bonded in accordance with the Miller Act, 40 U.S.C. 3131-3134.
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18178-0/MDB/mdb/1824289
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2.

Use-Plaintiff Ronald James Strayer is, and at all times relevant to this

2 action was, an individual doing business as Strayer Electric (Strayer Electric), a sole
3 proprietorship transacting and doing business in the State of Arizona with a principal
4 place of business in Phoenix, Arizona.
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3.

Strayer Electric is and at all times relevant to this action was licensed with

6 the Arizona Registrar of Contractors, License No. 269217.

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4.

On information and belief, Defendant Eco Clean Solar, Inc. was formerly

8 known as Sunwize Technologies, Inc. until changing its name in January 2015
9 (Defendant Sunwize), and is and at all times relevant to this action was a corporation
10 organized and duly existing under the laws of the State of Delaware, with its principal
11 place of business in San Jose, California, doing business in several states including the
12 State of Arizona.
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5.

On information and belief, Defendant Westchester Fire Insurance

14 Company (Defendant Surety), is a corporation organized and duly existing under the
15 laws of the State of Pennsylvania, with its principal place of business in Philadelphia,
16 Pennsylvania, and authorized to do and doing business in the State of Arizona as, inter
17 alia, a surety for public construction payment bonds.
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6.

This action arises, and the Court has jurisdiction, under the Miller Act, 40

19 U.S.C. 3131-3134. Pursuant to 40 U.S.C. 3133(b)(3), venue is proper in the

20 United States District Court, District of Arizona, because the construction contracts
21 giving rise to this action occurred and were performed in Maricopa County, Arizona.
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7.

This Court has supplemental/pendant jurisdiction over the related state

23 and common law claims in this action pursuant to 28 U.S.C. 1367(a).

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GENERAL ALLEGATIONS COMMON TO ALL COUNTS

8.

Strayer Electric realleges the above as though set forth at length.

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9.

On information and belief, in or about June 2014, Defendant Sunwize

2 contracted with the United States of America, acting by and through the U.S.
3 Department of Veterans Affairs, for Sunwize to furnish materials, labor, and services
4 for certain construction improvements to a Veterans Administration medical center
5 commonly known as the Carl T. Hayden VA Medical Center located at 650 E. Indian
6 School Rd., in Phoenix, Arizona (the Project).
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10.

On information and belief, Defendant Sunwize is and at all times material

8 to this action was the sole prime contractor for the Project.
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11.

The Project is a federal public construction project subject to the statutory

10 public project payment bond requirements of the Miller Act, at 40 U.S.C. 3131-3134.
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12.

In accordance with the Miller Acts payment bond requirements, and

12 presumably in accordance with the prime contract, Defendant Sunwize obtained a

13 payment bond for the payment protection of subcontractors and suppliers furnishing
14 labor, materials, and equipment for the improvement of the Project.
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13.

In or about June 2014, Defendant Sunwize, as Principal, and Defendant

16 Surety, as payment bond surety, executed a payment bond for the Project identified as
17 Bond No. K0845548A (the Payment Bond).
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14.

On November 5, 2014, Defendant Sunwize entered into a written

19 subcontract agreement with Strayer Electric for Strayer Electric to furnish certain
20 electrical work for the benefit of the Project, Sunwize, and the owner (Subcontract).
21 (A copy of the Subcontract is attached hereto as Exhibit A and incorporated herein by
22 this reference.)
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15.

Strayer Electric properly performed in accordance with its contractual

24 obligations with Defendant Sunwize, thereby furnishing certain construction labor and
25 materials that were incorporated into and improved the Project.
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16.

Despite properly performing its contractual obligations and making proper

2 billings and demands for payment, Strayer Electric has not been fully paid by
3 Defendants or any other person or entity.
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17.

After applying all payments, just credits, and offsets for its labor,

5 materials, and services furnished in improving the Project, Strayer Electric remains
6 unpaid a total principal amount of $24,629.25, plus interest that has accrued and
7 continues to accrue on the principal balance at the highest contractual or statutory rate
8 applicable until paid in full.
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18.

Strayer Electric is further entitled to an award of its legal costs and

10 reasonable attorneys fees pursuant to section 14.21 of the Subcontract Agreement and
11 Arizona law, which laws include but are not necessarily limited to A.R.S. 12-341,
12 12-341.01, and 32-1129.02, whichever is finally adjudged to provide the greatest award.
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19.

If Judgment by default is entered, Strayer Electric is entitled to attorneys

14 fees in an amount of not less than $5,500.00, interest and late charges of not less than
15 $3,000.00, and compensable litigation costs of not less than $1,000.00.
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20.

Any and all conditions precedent to asserting all claims in this lawsuit

17 have been performed or have occurred.

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COUNT ONE

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(Miller Act Payment Bond Claim Defendants Sunwize and Surety)

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21.

Strayer Electric realleges the above as though set forth at length.

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22.

At all times relevant Strayer Electric was a bona fide and known

22 subcontractor providing electrical work improvements for the Project.

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23.

Pursuant to the Miller Act, 40 U.S.C. 3131-3134, the Payment Bond

24 was executed for the payment protection of subcontractors, such as Strayer Electric,
25 who remain unpaid despite proper performance of contractual obligations to furnish
26 labor, materials, and related services in the improvement of the Project.
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24.

Strayer Electric last furnished labor, materials, and services to the Project

2 on or about January 9, 2015.

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25.

As of the date of filing this Complaint, more than 90 days and less than

4 one year have elapsed since Strayer Electric last furnished materials, labor, and services
5 to the Project.
6

26.

The unpaid principal value of materials, labor, and services Strayer

7 Electric furnished to the Project is $24,629.25, plus interest that has accrued and
8 continues to accrue on the principal balance at the highest contractual or statutory rate
9 applicable until paid in full, plus legal costs and reasonable attorney fees.
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27.

Strayer Electric has complied with all statutory conditions required by the

11 Miller Act to assert this claim for payment against the Payment Bond.
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WHEREFORE, the United States of America, for the use and benefit of Ronald

13 James Strayer, dba Strayer Electric, requests Judgment, jointly and severally, against
14 Defendants Eco Clean Solar, Inc., fka Sunwize Technologies, Inc., as Payment Bond
15 principal, and Westchester Fire Insurance Company, as Payment Bond surety, as
16 follows:
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A.

For the principal sum of $24,629.25, plus interest that has accrued and

18 continues to accrue on the principal sum at the highest contractual or statutory rate
19 applicable, whichever is deemed greatest, until paid in full;
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B.

For any and all compensatory damages in an amount to be proven at trial;

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C.

For incidental and consequential damages in such amount as may be

22 proven at trial;
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D.

For Strayer Electrics pre- and post-judgment attorneys fees and costs

24 incurred in the prosecution of this action and subsequent collection of any Judgment
25 rendered thereon pursuant to contract or law, whichever provides the greatest award;
26 and,
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E.

For such other and further relief as the Court may deem proper and just.

COUNT TWO

(Breach of Contract Defendant Sunwize)

28.

Strayer Electric realleges the above as though set forth at length.

29.

Despite proper and full performance of its contractual obligations, timely

6 and proper invoicing, and issuing numerous demands for payment, Strayer Electric has
7 not been fully paid by Defendant Sunwize or any other person or entity.
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30.

Defendant Sunwize has breached its contractual obligations to Strayer

9 Electric by failing to fully and timely pay as required.

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31.

As a direct and proximate result of Defendant Sunwizes breach of

11 contract, Strayer Electric has suffered and is suffering actual and compensable damages
12 in an amount to be determined at trial, but in no event less than the total principal
13 amount of $24,629.25, plus interest accruing on the principal balance at the highest
14 contractual or statutory rate applicable, plus contractual legal costs and attorney fees,
15 until paid in full.
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WHEREFORE, Plaintiff Ronald James Strayer, dba Strayer Electric, requests

17 Judgment against Defendant Eco Clean Solar, Inc., fka Sunwize Technologies, Inc., as
18 follows:
19

A.

For the principal sum of $24,629.25, plus interest thereon at the highest

20 rate provided by contract or applicable law, whichever is greatest, until paid in full;
21

B.

For any and all compensatory damages in an amount to be proven at trial;

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C.

For incidental and consequential damages in such amount as may be

23 proven at trial;
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D.

For Strayer Electrics pre- and post-judgment attorneys fees and costs

25 incurred in the prosecution of this action and subsequent collection of any Judgment
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1 rendered thereon pursuant to contract or law, whichever provides the greatest award;
2 and,
3

E.

For such other and further relief as the Court may deem proper and just.

COUNT THREE

(Unjust Enrichment Defendant Sunwize)

32.

Strayer Electric realleges the above as though set forth at length.

33.

At the specific request and authorization of Defendant Sunwize, Strayer

8 Electric furnished certain construction materials, labor, and related services for the
9 improvement of the Project.
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34.

Defendant Sunwize has been benefited and enriched by Strayer Electrics

11 materials, labor, and related services, but has failed to fully pay Strayer Electric for
12 those benefits.
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35.

By retaining and benefiting from Strayer Electrics materials, labor, and

14 related services, but not fully paying for same, Defendant Sunwize has been unjustly
15 enriched at the impoverishment of Strayer Electric.
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36.

Quantum meruit is Strayer Electrics measure of damages under the

17 remedy of unjust enrichment, and is comprised of the reasonable value of labor and
18 materials rendered. Landi v. Arkules, 172 Ariz. 126, 835 P.2d 458 (App. 1992). Strayer
19 Electrics reasonable value of materials, labor, and related services, for which payment
20 has not been received, is no less than the unpaid principal amount of $24,629.25.
21

37.

Strayer Electric is entitled to recover reasonable attorneys fees and

22 expenses incurred under the remedy of unjust enrichment.

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WHEREFORE, Plaintiff Ronald James Strayer, dba Strayer Electric, requests

24 Judgment against Defendant Eco Clean Solar, Inc., fka Sunwize Technologies, Inc., as
25 follows:
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Case 2:15-cv-02215-NVW Document 1 Filed 11/03/15 Page 8 of 8

A.

For the reasonable value of Strayer Electrics improvements, which is no

2 less than the principal sum of $24,629.25, with interest thereon at the highest legal rate
3 provided by law, until paid in full;
4

B.

For Strayer Electrics prejudgment and post-Judgment attorneys fees and

5 costs incurred in the prosecution of this action and subsequent collection of any
6 Judgment rendered thereon pursuant to law; and,
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C.

DATED this 3rd day of November, 2015.

For such other and further relief as the Court may deem proper and just.

Jaburg & Wilk, P.C.

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/s/ Mark D. Bogard

Thomas S. Moring, Esq.
Mark D. Bogard, Esq.
Attorneys for Use-Plaintiff Ronald James Strayer,
dba Strayer Electric

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