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

Case 1:07-cv-00359-FMA

Document 13

Filed 12/05/2007

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In The United States Court of Federal Claims
Seraphin Transport Co. Plaintiff, vs. The United States Defendant ) ) ) ) ) ) ) ) )

Case No. 07-359C Judge Francis M. Allegra

Motion for Leave to File Sur-Reply Memorandum
Seraphim Transport Co., Plaintiff, pursuant to Rule 7.2(d) & 16 & the inherent authority of the Court, moves this Court for leave to file a sur-reply memorandum of points & authorities in opposition to the Government's Motion to Dismiss. The facts and legal grounds on which this motion is based are: The Government filed a Motion to Dismiss arguing in part that the contract that Seraphim is suing on is a blanket purchase agreement, not giving rise to a cause of action for breach of contract. (Motion to Dismiss at 7-8.) Seraphim filed an opposition arguing that the contract was not a blanket purchase agreement, but an indefinite delivery, indefinite quantity contract with a minimum purchase provision, and that such an agreement does give rise to a breach of contract claim. (Opposition at 4-8.) The Government filed a reply arguing that the agreement was a blanket

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Case 1:07-cv-00359-FMA

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purchase agreement and in the alternative that if the agreement were an indefinite delivery, indefinite quantity contract, no breach of contract claim arose since the minimum purchase requirement was met. (Reply Brief at 1-4.) The Government's arguments did not address the claim for bad faith termination and for breach of covenant of good faith & fair dealing. Seraphim has uncovered evidence that the Government cancelled the agreement in retaliation for failing to pay a bribe. (Opposition at 2-3 & at Exhibits A & B.) Seraphim has prepared a sur-reply memorandum arguing that even if the Government is correct in its Reply that the Government was free to cancel the agreement, then Seraphim still has a cause of action for breach of the covenant of good faith & fair dealing. Seraphim did not raise this argument in its original opposition since the Government had not made the argument that an indefinite delivery, indefinite quantity contract could be cancelled at will. Injustice would arise if Seraphim were not given the opportunity to brief this new argument made by the Government for the first time in its Reply Brief. Seraphim would of course consent to the Government being given the opportunity to respond to the arguments of the Sur-Reply should the Government so wish.

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Case 1:07-cv-00359-FMA

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Respectfully submitted, Dated: _5 December 2007_ Signed: Address: Telephone: Email: 1 Exhibit: A. Proposed Order __s/Michael Trevelline______________ Michael J. Trevelline, DC Bar # 437454 1823 Jefferson Place, NW Washington, DC 20036-2504 (202) 737-1139/Fax: (202) 775-1118 [email protected] Attorney for Plaintiff Seraphim Transport Co.

Certificate of Attempted Consent
I hereby certify that consent for the relief sought in this motion was diligently sought but X was refused. Communication with the affected party was attempted but was unsuccessful. __/s/ Michael Trevelline___ Michael J. Trevelline

Certificate of Filing
I hereby certify that on this 5th day of December, 2007. a copy of the foregoing 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/Michael Trevelline__________

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Case 1:07-cv-00359-FMA

Document 13

Filed 12/05/2007

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In The United States Court of Federal Claims
Seraphin Transport Co. Plaintiff, vs. The United States Defendant ) ) ) ) ) ) ) ) )

Case No. 07-359C Judge Francis M. Allegra

Memorandum of Points & Authorities in Support of Motion for Leave to File Sur-Reply Memorandum
United States Court of Federal Claim Rule 7.2(d) & 16. Inherent authority of Court. Respectfully submitted, Dated: _5 December 2007_ Signed: Address: Telephone: Email: __s/Michael Trevelline______________ Michael J. Trevelline, DC Bar # 437454 1823 Jefferson Place, NW Washington, DC 20036-2504 (202) 737-1139/Fax: (202) 775-1118 [email protected] Attorney for Plaintiff Seraphim Transport Co.

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