Free Motion for Clarification - District Court of Federal Claims - federal

Case 1:07-cv-00611-MBH

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Filed 12/07/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PHOENIX INDUSTRIAL CONTRACTORS, INC. ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) __________________________________________)

Civil Action No. 07-611 C Judge Marian Blank Horn

REQUEST FOR MODIFICATION OF ORDER Plaintiff Phoenix Industrial Contractors, Inc. by the undersigned counsel, files this Request for Modification of Order and in support thereof, respectfully says: 1. On September 24, 2007, Plaintiff filed in this Court a Motion to Transfer Pursuant

to 41 U.S.C §609(d). Plaintiff sought to have this matter consolidated with overlapping appeals at the Civilian Board of Contract Appeals (Docket Nos. 680 & 681). 2. On September 26, 2007, Defendant filed its response, stating it did not oppose

transfer of this case to the Civilian Board of Contract Appeals. 3. On November 9, 2007, the Court held a status conference with the parties plus

agency counsel. Per Plaintiff's counsel's recollection, the Court agreed during that conference to grant Plaintiff's Motion and transfer this matter to the Civilian Board of Contract Appeals, and dismiss the pending action at the Court. Upon inquiry this date, Defendant's counsel recalls that the Court agreed to grant Plaintiff's Motion and transfer this matter to the Civilian Board of Contract Appeals. 4. The Order filed on November 12, 2007, however, makes no provision for the

transfer of the matter to the Civilian Board of Contract Appeals and, instead, dismisses the matter with prejudice. 1

Case 1:07-cv-00611-MBH

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Filed 12/07/2007

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5.

Accordingly, Plaintiff seeks a modification by the Court to provide that its Order

of November 12, 2007 transfers this matter to the jurisdiction of the Civilian Board of Contract Appeals pursuant to 41 U.S.C §609(d). WHEREFORE Phoenix respectfully requests the Court modify its Order of November 12, 2007, to include a provision for the transfer of this matter to the jurisdiction of the Civilian Board of Contract Appeals pursuant to 41 U.S.C §609(d), and for such and other relief as the Court deems just. Respectfully submitted,

Dated: December 7, 2007

/s/Douglas L. Patin DOUGLAS L. PATIN Bradley Arant Rose & White LLP 1133 Connecticut Avenue, NW, 12th Floor Washington, D.C. 20036 (202) 719-8241 (office) (202) 719-8341 (fax)

Counsel for Plaintiff PHOENIX INDUSTRIAL CONTRACTORS, INC.

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Case 1:07-cv-00611-MBH

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Filed 12/07/2007

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CERTIFICATE OF FILING I hereby declare that on this 7th day of December, 2007, a copy of the foregoing Request for Modification of Order 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 L. Patin Douglas L. Patin

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