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U.S. FOR USE OF HENDERSON v. NUCON CONST. CORP.

Nos. 93-16651, 93-17027.

49 F.3d 1421 (1995)

UNITED STATES of America, for the Use of C.W. HENDERSON, and Wanda Henderson, husband and wife, doing business as C.W. Henderson Construction Co., a sole proprietorship, Plaintiffs-Appellants, v. NUCON CONSTRUCTION CORPORATION; A.J. Jones Construction Co., and a limited partnership Aetna Casualty and Surety Co.; Entities 5-100, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Decided March 13, 1995.

Attorney(s) appearing for the Case

Mark L. Collins, Tucson, AZ, for plaintiffs-appellants.

Michael J. LaVelle, Allen, Kimerer & LaVelle, and Merrick B. Firestone, Phoenix, AZ, for defendants-appellees.

Before: REINHARDT, THOMPSON and KLEINFELD, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

The district court dismissed a subcontractor's Miller Act suit for failure to join the general contractor as an indispensable party. The court also awarded attorney fees to the defendants. Because we hold the general contractor is not an indispensable party in a Miller Act suit by a subcontractor against the Miller Act surety, we reverse the dismissal, vacate the award of attorney fees, and remand for further proceedings.

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