Free Pretrial Order - District Court of Federal Claims - federal

Case 1:00-cv-00755-FMA

Document 72

Filed 02/06/2004

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In the United States Court of Federal Claims
No. 00-755C (Filed: February 6, 2004) __________ SOUTHERN COMFORT BUILDERS, INC., Plaintiff, v. THE UNITED STATES, Defendant. _________ ORDER __________

A pretrial conference was held in this case on February 5, 2004. Participating in this conference were John C. McManus, on behalf of plaintiff, and David Robert Feniger, on behalf of defendant. Pursuant to discussions held, the court orders the following: 1. The legal issues to be resolved during trial in this case are: a. Were defendant's specifications defective in that they failed to specify the need for variable frequency drives (VFDs)? If the VFDs were required, can defendant recover penalties, forfeiture, or other damages against plaintiff under the False Claims Act, the Contract Disputes Act, or 28 USC § 2514? Were defendant's specifications defective in that they failed to specify the need for a grounding system for the communications system? Was the uninterruptible power source (UPS) government furnished equipment and was the failure to furnish it early in the project a constructive suspension of work?

b.

c.

d.

Case 1:00-cv-00755-FMA

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e.

Did the lack of the UPS give rise to a differing site condition with an impact on plaintiff's performance of the contract? Did defendant fail to coordinate plaintiff's work with that of another contractor, giving rise to a breach of the covenant of good faith and fair dealing contained in every contract with the government? If plaintiff is eligible to recover on the above claims, can it also recover on passthrough claims from its subcontractor Chrome Electric, Inc.?

f.

g.

2.

The parties preliminarily discussed the order of proof in the case. Based on that discussion, it was determined that because there are issues on which the government has the burden of proof, the court may need to alter rebuttal/surrebuttal presentations in this case. On or before March 1, 2004, the parties shall file a joint stipulation of facts. On or before March 1, 2004, each party shall file a list of witnesses and anyone who will be appearing on its behalf, such list to be provided by the court to Patrick Air Force Base before trial. In addition, those who will be driving onto the base for trial are instructed to have in their possession proof of auto insurance. Regarding witnesses: a. On or before March 1, 2004, the parties shall advise each other of any changes to their witness lists. The parties agree that the testimony of D.R. Ellis will be admitted in the form of an affidavit dated March 4, 2003. The plaintiff's witness, Kathy Simmons, will not be called to testify.

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c. 6.

Regarding exhibits: a. At the outset of trial, it is the court's intent to admit en masse any exhibits to which there are no objections. At the outset of trial, the court will rule on any objections to exhibits that do not require live testimony. Objections to exhibits that require live testimony will be considered at the appropriate time. -2-

b.

c.

Case 1:00-cv-00755-FMA

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d.

The parties shall consult and, to the extent possible, avoid introducing duplicate exhibits.

7.

At the beginning of trial, the parties shall supply six pre-marked copies of the exhibits they intend to offer in this case. The exhibits shall be in binders, with tabbed dividers between each individual exhibit. If the parties decide not to include an exhibit, they should indicate, behind the appropriate divider, that the exhibit was purposely removed. Colored exhibit stickers shall be affixed only to the original copy of the exhibits (which will be provided to the reporter). Defendant shall use blue stickers; plaintiff shall use any color other than blue. Based on the tight schedule anticipated, the parties are hereby instructed to have adequate witnesses available and prepared to testify on each day of trial, so as to ensure that each day of the trial proceedings is fully utilized. The court may require post-trial briefing in this case. If necessary, the schedule for such briefing will be established at the conclusion of the trial. Counsel are reminded of the court's expectation that they will attempt to resolve as many matters as possible through cooperation. Trial will commence with opening arguments at 10:00 a.m. on Monday, March 8, 2004, at Patrick Air Force Base, 642 O'Malley Road, Patrick AFB, FL 32925. Each subsequent day of the trial will begin at 9:00 a.m.

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IT IS SO ORDERED.

s/ Francis M. Allegra Francis M. Allegra Judge

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