Free Response to Motion - District Court of Federal Claims - federal

Case 1:03-cv-01420-EGB

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Filed 12/15/2003

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) THRUSTMASTER OF TEXAS, INC., ) ) Plaintiff ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant ) ____________________________________)

Civil No. 03-1420C (Senior Judge Bruggink)

PLAINTIFF'S RESPONSE TO MOTION TO DISMISS Plaintiff, Thrustmaster of Texas, Inc., through counsel, opposes the defendant's motion to dismiss insofar as it requests that this Court dismiss the complaint rather than transferring the action to the United States District Court. Defendant has moved to dismiss on grounds that the contract(s) at issue are totally maritime and that this matter accordingly sounds in admiralty. Upon review of case law concerning maritime contracts, and in view of provisions of the Army Orders with Thrustmaster under the General Services Administration Schedule Contract (as referenced in Complaint ¶11) which provided that plaintiff was to provide bow thrusters for use on vessels F.O.B. plaintiff's factory in Houston, and also a "technical representative to supervise installation, start-up and operational verification during trials' of vessels," plaintiff now concurs that this case sounds in admiralty. Dismissal, however, is not appropriate. In such cases as this, where plaintiff has filed a suit in the United States Court of Federal Claims in good faith, and partially upon reliance on direction of the Contracting Officer (Defendant's Motion to Dismiss, Appendix p. 20), the Court should transfer the action to the United States District Court, which does have jurisdiction. 28

Case 1:03-cv-01420-EGB

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Filed 12/15/2003

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U.S.C. § 1631 provides: Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. In a similar case, the United States Court of Appeals for the Federal Circuit transferred the case to the United States District Court. Umpqua Marine Ways, Inc. v. United States, 925 F.2d 409, 414 (Fed. Cir. 1991); see also McCann v. United States, 12 Cl. Ct. 286. Moreover, the United States District Court has jurisdiction over this case: District courts thus have jurisdiction over two types of actions under the CDA. First, a district court has jurisdiction over "appeals under paragraph (g) of [41 U.S.C.] section 607 . . . arising out of maritime contracts." [41 U.S.C. § 603]. Those appeals are taken from the "decision of an agency board of contract appeals." Id. §§ 607(g)(1). Second, a district court has jurisdiction over "suits under section 609 . . . arising out of maritime contracts." Id §§ 603. Those are suits filed directly in the United States Claims Court "in lieu of appealing the decision of the contracting officer [to the ABCA] under section 605." Id. §§ 609(a)(1). Southwest Marine v. United States, 926 F. Supp. 142, 144 (N.D. Calif. 1995). For the foregoing reasons, Plaintiff respectfully requests that the Court deny defendant's motion to dismiss and instead transfer this matter to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1631. A separate Motion for Transfer accompanies this response.

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Case 1:03-cv-01420-EGB

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Respectfully submitted, /s/ Raymond J. Sherbill, Esq. RIDBERG SHERBILL & ARONSON LLP Three Bethesda Metro Center Suite 650 Bethesda, Maryland 20814-5329 (301) 913-5770 Counsel for Defendant Thrustmaster of Texas, Inc.

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Case 1:03-cv-01420-EGB

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on the 15th day of December, 2003, I caused to be served electronically, a copy of PLAINTIFF'S RESPONSE TO MOTION TO DISMISS, on:

Claudia Burke, Attorney Civil Division, Department of Justice Att'n: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530

____________________________________ Raymond J. Sherbill

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