The Miller Act requires a claimant to sue the Miller Act payment bond surety in the federal district court where the work is performed (i.e., where the project is located). However, this venue can be modified by a forum selection provision in a contract that places venue elsewhere. Consider venue provisions in contracts and understand that even if you sue a Miller Act payment bond surety in the district court where the work is performed, a properly written forum selection provision that places venue elsewhere may be enforceable against you by the surety.
For example, assume a project is located in New York. But, the prime contractor negotiates a subcontract with its subcontractor that places venue for any disputes in Boston. The subcontractor is owed money and sues the prime contractor’s Miller Act payment bond surety in New York (where the project is located)? Guess what? There is a strong argument based on the forum selection provision that would allow the surety to transfer venue to Boston.
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