Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

Document 18-2

Filed 08/15/2003

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff v. THE UNITED STATES, Defendant

CASE NO: 03-CV-289 Judge Allegra

PLAINTIFF'S FIRST AMENDED MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 TO THE HONORABLE COURT: United Medical Supply Company, Inc., Plaintiff, pursuant to Rule 56 moves this Court for judgment against Defendant the United States for breach of contract, Contract Number SP0200-97-D-7133, and would show the Court as follows: 1. The United States and Plaintiff entered into a "requirements" contract which provided that the United States would purchase all of its requirements for certain types of medical supplies from Plaintiff. 2. The United States, in breach of the requirements contract, purchased the majority of its "requirements" from third parties. 3. These diverted purchases caused damages to Plaintiff. 4. The Government purchased and obtained supplies from Plaintiff for which it has not paid. 5. Demand has been made on the United States for payment, but payment has not been made.

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6. The Government also breached the contract by failing to timely pay Plaintiff for goods it ordered and received, ultimately resulting in Plaintiff's failure as a going concern, and, under the circumstances of this case, the Government is liable for Plaintiff's lost goodwill and reputation. 7. The elements of Plaintiff's breach of contract claim are: (1) breach by the Government; (2) performance by Plaintiff with the material terms of the contract or excuse of such performance; (3) resulting damages to Plaintiff. 8. As shown in the brief filed with this Motion, there are no genuine issues of material fact with respect to each of the breach of contract elements and the minumum damages suffered by Plaintiff. 9. To the extent that Plaintiff believes a portion of its damages cannot be established with summary judgment proof, it waives those portions for purposes of this motion only, and only in the event that this Court grants this Motion and that the judgment eventually becomes a final judgment against the United States not subject to further appeal. 10. The granting of this motion would be dispositive of all issues in the lawsuit and the judgment would be a final order. Accordingly, Plaintiff requests that the Court enter final judgment in favor of Plaintiff United Medical Supply Company, Inc. against the United States in accordance with Plaintiff's brief filed in support of this motion.

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Signed August 15, 2003. Respectfully submitted,

/s/ Frank L. Broyles Frank L. Broyles State Bar No. 03230500 Goins, Underkofler, Crawford & Langdon, LLP 1201 Elm Street 4800 Renaissance Tower Dallas, Texas 75270 (214) 969-5454 (214) 969-5902 Fax Attorney for Plaintiff

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CERTIFICATE OF SERVICE On August 15, 2003 the foregoing motion for extension was served on the persons shown below by the method shown below in accordance with rule 5.1. /s/ Frank L. Broyles PERSONS SERVED: Ms. E. Kathleen Shahan Civil Division U.S. Department of Justice P.O. Box 875, Ben Franklin Station Washington, D.C. 20044-0875 Method Served: email for motion and brief; Appendices served by mailing copy of CD Rom.

ALAN J. LO RE Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street Washington, D.C. 20530

Method Served: email for motion and brief; Appendices served by mailing copy of CD Rom.

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