Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:07-cv-00218-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

***************************** GREAT LAKES DREDGE & DOCK COMPANY, LLC as the Successor in Interest of GREAT LAKES DREDGE & DOCK COMPANY, for the Use and Benefit of WILKINSON & JENKINS CONSTRUCTION CO., INC., Plaintiff, No. 07-00218 C v. Judge Firestone UNITED STATES ARMY CORPS OF ENGINEERS, Defendant. ***************************** PLAINTIFF'S MOTION FOR LEAVE TO AMEND PLAINTIFF'S AMENDED COMPLAINT BY INTERLINEATION Pursuant to Court of Federal Claims Rule 15,1 Plaintiff, Great Lakes Dredge & Dock Company, LLC as the Successor in Interest of Great Lakes Dredge & Dock Company, for the Use and Benefit of Wilkinson & Jenkins Construction Co., Inc. ("Plaintiff"), files this motion requesting that the Court issue an order permitting Plaintiff to amend by interlineation Plaintiff's Amended Complaint as follows: 1. By inserting in line 3 of paragraph 12 after the words "in the amount of" the

amount "$677,440.00" to replace "$731,553.00." 2. By inserting in line 5 of paragraph 12 after the words "additional sum of" the

amount "$106,910.00" to replace "$115,448.00."

Court of Federal Claims Rule 15 is virtually identical in pertinent part to Federal Rule of Civil Procedure 15, under which amendment by interlineation has been permitted. Plaintiff accordingly requests that the Court likewise allow amendment by interlineation here, as this is the most simple and efficient way to accomplish the simple monetary adjustments to the amount of the equitable adjustment requested. The amendments to the Amended Complaint as set forth herein merely amend the amount of damages specifically requested (downward).

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3.

By inserting in line 5 of paragraph 12 after the words "total amount of" the

amount "$784,350.00" to replace "$847,001.00." 4. Paragraph 12 of the Amended Complaint shall now read as follows:

"Based on the Corps Manual 1110-1-8, Construction Operating Equipment Ownership and Operating Expense Schedule, Region III, Great Lakes claims entitlement to be compensated by the Corps for W&J's additional costs in the amount of $677,440.00 pursuant to Corps Manual 1110-1-8, together with appropriate mark-ups (for an additional sum of $106,910.00) for a total amount at issue of $784,350.00, and interest required by law measured from the date of the Corps' receipt of the certified claim as well as interest required by law measured from the date the payment was due through the date of the Corps receipt of the certified claim. The Corps position is that W&J and Great Lakes have been paid the actual costs determined from the contractor's records and no additional money is due." 5. By inserting in line 5 of the "WHEREFORE" paragraph after the words "in the

amount of" the amount "$677,440.00" to replace "$731,553.00." 6. By inserting in line 6 of the "WHEREFORE" paragraph after the words "in the

sum of" the amount "$106,910.00" to replace "$115,448.00." 7. By inserting in line 6 of the "WHEREFORE" paragraph after the words "for a

total amount of" the amount "$784,350.00" to replace "$847,001.00." 8. The "WHEREFORE" paragraph shall now read as follows:

"WHEREFORE, Great Lakes Dredge and Dock Company LLC, as the successor in interest of Great Lakes Dredge & Dock Company, for the use and benefit of Wilkinson & Jenkins Construction Co., Inc. is entitled to an equitable adjustment to the Contract for the additional equipment costs incurred by Great Lakes and W&J pursuant to Corps Manual 1110-1-

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8 in the amount of $677,440.00, with appropriate mark-ups for Great Lakes in the sum of $106,910.00, for a total amount at issue of $784,350.00, together with interest required by law pursuant to 41 U.S.C. § 611 measured from the date when the certified claim was received by the Government, interest required by law pursuant to 31 U.S.C. § 3901 et seq. from the date payment on the claim was due through the date the Government received the certified claim, and such other and further relief as the Court may deem just and proper." 9. The grounds for this motion are that, in reviewing the Request for Equitable

Adjustment and in re-reading the language in Corps Equipment Manual 1110-1-8, W&J and Great Lakes reduced the amount of the equitable adjustment sought for direct standby cost, owned equipment, by an amount of $23,982 and reduced the amount of the equitable adjustment sought for owned equipment that was operated more than forty hours in any seven day week by $21,424. A detailed explanation of the reasons for the amendment (and the computations resulting therefrom) are attached as Exhibit "A" hereto. 10. Plaintiff accordingly seeks to amend the prior Amended Complaint by

interlineation from amounts of $731,553.00, $115,448.00 and $847,001.00, respectively to the amounts shown herein. 11. Plaintiff's counsel certifies that he has contacted Defendant's counsel and

Defendant's counsel does not oppose the motion. WHEREFORE, Plaintiff requests the Court issue an Order granting Plaintiff's Motion for Leave to Amend Plaintiff's Amended Complaint by Interlineation as set forth herein and grant such other and further relief as the Court deems just and proper.

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Dated this 10 day of July, 2008.

Respectfully submitted,

/Joseph W. Lawrence, II Joseph W. Lawrence, II Florida Bar No. 211303 E-mail: [email protected] Vezina, Lawrence & Piscitelli, P.A. The Museum Building 300 SW First Avenue, Suite 150 Fort Lauderdale, FL 33301 Telephone: (954) 728-1270 Facsimile: (954) 728-1271 Attorneys for Great Lakes Dredge & Dock Company, LLC as the Successor in Interest of Great Lakes Dredge & Dock Company, for the Use and Benefit of Wilkinson & Jenkins Construction Co., Inc.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 10, 2008, I electronically filed this document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on the following counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF: Armando Rodriguez-Feo, Trial Attorney Commercial Litigation Branch, Civil Division United States Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 /Joseph W. Lawrence, II Joseph W. Lawrence, II

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