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Traveler Cas. & Surety Co. of Am. v. Silo City Phase I LLC

Mediation Was Not Condition Precedent to Insurers' Litigation Over Performance Bond

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DECISION AND ORDER Plaintiffs Travelers Casualty and Surety Company of America and Liberty Mutual Insurance Company (“Plaintiffs” or “Sureties”) commenced this suit seeking a declaratory judgment exonerating them from liability on their performance bond issued in favor of Silo City Phase I LLC and Silo City Phase I Housing Development Company, Inc. (“Defendants”). Dkt. 1. On August 24, 2022, this Court referred the case to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §636(b)(1)(A) and (B). Dkt. 9. Presently before the Court is Judge McCarthy’s Superseding Report, Recommendation, and Order (“Superseding R&R”) addressing Defendants’ motion to dismiss the complaint and motion for reconsideration of Judge McCarthy’s earlier Report & Recommendation (“R&R”). For the reasons discussed below, the Court accepts Judge McCarthy’s recommendation and denies the motion to dismiss. BACKGROUND¹ Defendants entered into a construction contract with Arc Building Partners, LLC (“Arc”) for a construction project in Buffalo. Dkt. 1 10. As required under that contract, Plaintiffs entered a performance bond with Arc, under which Plaintiffs, as sureties, guaranteed Arc’s performance of the Construction Contract. Id.

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