Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:07-cv-00815-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CALL HENRY, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-815C (Judge Wheeler)

JOINT PRELIMINARY STATUS REPORT Pursuant to Appendix A of the Rules of the United States Court of Federal Claims ("RCFC"), plaintiff, Call Henry, Inc., and defendant, the United States, respectfully submit the following joint preliminary status report. A. Jurisdiction

Plaintiffs allege that this Court has jurisdiction to consider and decide this action pursuant to the Contract Disputes Act, 29 U.S.C. § 601 et seq. Defendant is not aware of a basis upon which to challenge jurisdiction at this time. See 28 U.S.C. § 1491. B. Consolidation

The parties agree that this case should not be consolidated with any other case at this time. C. Bifurcation

The parties agree that a bifurcation of damages and liability for trial is not necessary at this time. D. Deferral

At this time, the parties agree that further proceedings in this case should not be deferred pending consideration of another case before this Court or any other tribunal.

Case 1:07-cv-00815-TCW

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E.

Remand/Suspension

The parties do not request that this action be remanded or suspended at this time. F. Joinder

The parties do not anticipate the filing of any motion to join additional parties at this time. G. Dispositive Motions

The parties anticipate filing cross-motions for summary judgment pursuant to RCFC 56 upon the completion of discovery. H. Relevant Issues

Plaintiff is a government contractor. Plaintiff and defendant entered into a time and materials contract for certain engineering services. During the base year of the contract, defendant ordered approximately 130,160 hours of plaintiff's services, or approximately 17.77 percent less than the 158,280 hours that defendant originally had estimated in the solicitation. During the first option year, defendant ordered approximately 127,844 hours of plaintiff's services, or approximately 19.23 percent less than the 158,280 hours that defendant originally had estimated in the solicitation. The parties dispute: (i) whether defendant breached the time and materials contract by ordering fewer hours than originally estimated; (ii) whether the difference in the number of hours estimated and the number of hours ordered by defendant was "substantial" within the meaning of the contract; and (iii) whether plaintiff is entitled to equitable relief or damages. Defendant contends further, notwithstanding that defendant ordered fewer hours than originally estimated, plaintiff still was reimbursed for overhead expenses in excess of those actually incurred by plaintiff.

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I.

Settlement

The parties will continue to consider the possibility of settlement of this matter as discovery progresses. J. Trial

If dispositive motions are not submitted, or if any such motions are not completely dispositive of this action, the parties anticipate proceeding to trial. The parties do not request expedited trial scheduling. The parties agree that the place of trial shall be Washington, D.C. K. Electronic Case Management

The parties have no special issues regarding electronic case management needs. L. Additional Information

Plaintiff's pending claim pertains to the base year and the first option year of the contract. Plaintiff anticipates submitting to the contracting officer a new claim pertaining to the second option year of the contract. The new claim is based upon facts and circumstances that are similar to the pending claim. The parties anticipate that plaintiff will file a motion for leave to file an amended complaint, to add the new claim, in approximately 60 to 90 days, so that the common issues may be litigated in a single action. The parties have discussed that defendant is investigating a possible affirmative defense and/or possible counterclaim, against plaintiff based upon administrative positions, that were part of the overhead calculation in Call Henry's bid, and for which Call Henry has been paid as part of the hourly rate, that Call Henry never filled or did not fill for the entire contract term. The parties anticipate that this issue will be the subject of discovery in the action. Defendant reserves the right to file an affirmative defense and/or counterclaim, as appropriate, depending upon the information that is adduced during discovery.

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M.

Proposed Discovery Plan

The parties may conduct simultaneous discovery through various means as provided by the RCFC, including interrogatories, requests for admission, requests for the production of documents, depositions, and subpoenas duces tecum and for deposition. The parties propose the following schedule: 1. Completion of Fact Discovery 2. Deadline for Filing RCFC 56 Motions: February 27, 2009 March 31, 2009

The parties agree to dispense with RCFC 26(a)(1) disclosures. The parties anticipate briefing cross-motions for summary judgment on the normal schedule as provided by the Rules.

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Respectfully submitted,

GREGORY G. KATSAS Assistant Attorney General

JEANNE E. DAVIDSON Director

s/Patricia M. McCarthy PATRICIA M. MCCARTHY Assistant Director

s/Brian Koji BRIAN KOJI Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 225 324 South Hyde Park Avenue Tampa, Florida 33606-4127 Tel: (813) 251-1210 September 8, 2008 Attorney for Plaintiffs

s/Douglas G. Edelschick DOUGLAS G. EDELSCHICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L. Street, N.W. Washington, DC 20530 Tel: (202) 353-9303 September 8, 2008 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on September 8, 2008, a copy of foregoing "JOINT PRELIMINARY STATUS REPORT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Douglas G. Edelschick

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