Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:87-cv-00435-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

GATEWAY LUMBER CO., et al. (Gateway Lumber Co.), Plaintiffs, v. THE UNITED STATES, Defendant.

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Consolidated under lead case No. 87-435C (No. 87-435C) (Judge Bruggink)

DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT IN GATEWAY LUMBER CO. v. UNITED STATES, NO. 87-435C Pursuant to Rule 56(a), we respectfully request that the Court enter partial summary judgment as to liability against Gateway Lumber Company ("Gateway") and in favor of the United States on its counterclaim in this case. Partial summary judgment is appropriate because no genuine issue as to any material fact exists regarding Gateway's breach of contract and the United States is entitled to judgment as a matter of law.1 In support of this motion, we rely upon the pleadings, our accompanying proposed findings of uncontroverted fact, the Declaration of Christine Anderson, the documents reproduced in our appendix, and the following memorandum of law.

Like Mt. Adams Veneer Co. v. United States, No. 91-984C, this is a no-resale case. In a June 22, 2004 Order in Mt. Adams, this Court concluded that, where the Forest Service chose not to resell, a trial was necessary to resolve factual issues surrounding the Forest Service's appraisal of the value of the timber remaining upon contract termination and the resulting determination of damages. Accordingly, our motion in this case seeks summary judgment as to liability only. -1-

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DEFENDANT'S MEMORANDUM OF LAW Nature Of The Case Plaintiff, Gateway Lumber Company ("Gateway"), challenges a contracting officer's final decision assessing damages against it as a result of the company's failure to perform the Eldred Creek Timber Sale contract. The United States counterclaims for the damages due under the terms of the contract. Statement Of The Facts A statement of the relevant facts is set forth in our accompanying proposed findings of uncontroverted fact. Argument I. Summary Judgment Is Appropriate Summary judgment is appropriate where, as here, no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Summary judgment is properly regarded not as a disfavored procedural shortcut, but as "a salutary method of disposition 'designed to secure the just, speedy, and inexpensive determination of every action.'" Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1562 (Fed. Cir. 1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). A "material" fact is one which "might affect the outcome of the suit under the governing law" and a dispute as to a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. -2-

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at 248; Sweats Fashions, 833 F.2d at 1562. Moreover, as the Federal Circuit emphasized in Sweats Fashions, "the burden is not on the movant to produce evidence showing the absence of a genuine issue of material fact." 833 F.2d at 1563 (emphasis in original). Rather, "'the burden on the moving party may be discharged by 'showing' ­ that is, pointing out to the [court] ­ that there is an absence of evidence to support the non-moving party's case.'" Id. (emphasis in original) (quoting Celotex, 477 U.S. at 325). In this case, partial summary judgment in favor of the United States is appropriate because no genuine issue as to any material fact exists regarding Gateway's breach, and the United States is entitled, as a matter of law, to a judgment as to Gateway's liability. II. Gateway's Failure to Perform Constitutes a Breach of Contract; Gateway's Breach Is Unexcused as a Matter of Law. Under the terms of the Eldred Creek timber sale contract, Gateway was obligated to cut, remove, and pay for all of the timber included in the sale by the contract termination date (as extended). Gateway failed to do so. DPFUF ¶ 5-11;2 D. App. 12-24. Gateway's failure to perform constitutes a material breach of contract. Capital Development Co. v. United States, 49 Fed. Cl. 178 (2001), aff'd sub nom. Seaboard Lumber Co. v. United States, 308 F.3d 1283 (Fed. Cir. 2002); Seaboard Lumber Co. v. United States, 48 Fed. Cl. 814 (2001), aff'd 308 F.3d 1283 (Fed. Cir. 2002). Gateway asserts that its non-performance is excused, alternatively, under the doctrines of commercial impracticability, impossibility, and frustration of purpose. See Gateway's
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"DPFUF ¶ " refers to the cited paragraph(s) in our accompanying proposed findings of uncontroverted fact. Our proposed findings contain citations to documentary evidence reproduced in our appendix and to the testimony of Christine Anderson set forth in her Declaration filed with our motion. -3-

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Complaint ¶ 5. These defenses, as well as other liability defenses, have been rejected by both this Court and the Federal Circuit in prior litigation in these consolidated cases. Seaboard Lumber Co. v. United States, 41 Fed. Cl. 401, 405 (1998) ("The undisputed facts demand the conclusion that none of the plaintiffs' breaches are excused due to the contract doctrines of impossibility of performance, commercial impracticability, or frustration of purpose. Nor were the circumstances such that the `force majeure' clause found in the contracts would excuse nonperformance."), aff'd 308 F.3d 1283 (Fed. Cir. 2002). If Gateway has any additional affirmative defense or defenses, Gateway must raise them in its response to our motion. Further, to avoid summary judgment as to liability, Gateway must produce sufficient evidence to create a genuine issue as to some material fact. If Gateway fails to do so, summary judgment in favor of the United States is appropriate. Conclusion For the foregoing reasons, the United States respectfully requests that the Court grant its motion for partial summary judgment and enter an appropriate order ruling that Gateway's breach of the Eldred Creek contact is unexcused. Respectfully submitted, PETER D. KEISLER Assistant Attorney General J. CHRISTOPHER KOHN Director

s/John W. Showalter JOHN W. SHOWALTER Assistant Director -4-

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s/Richard P. Nockett RICHARD P. NOCKETT Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. (8th Floor) Washington, D.C. 20530 Tele: (202) 307-1134 Fax: (202) 307-0494 Attorneys for Defendant Dated: December 22, 2005

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 23d day of December

2005 I caused copies of the foregoing "DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN GATEWAY LUMBER CO. v. UNITED STATES, No. 87-435C," and the accompanying "APPENDIX TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT," and the "DECLARATION OF CHRISTINE ANDERSON" to be served upon the following individuals by United States mail (first-class, postage prepaid):

DENNIS J. DUNPHY, Esq. Schwabe, Williamson & Wyatt 1420 Fifth Avenue, Suite 3010 Seattle, Washington 98101-2393

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