Free Order Returning Document Unfiled - District Court of Federal Claims - federal

Case 1:06-cv-00695-MMS

Document 36

Filed 03/25/2008

Page 1 of 2

In the United States Court of Federal Claims
No. 06-695 C (Filed: March 25, 2008) ************************************* BRICKWOOD CONTRACTORS, INC., * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * ************************************* ORDER During the afternoon of March 25, 2008, plaintiff in the above-captioned case faxed a letter to the undersigned's chambers, which the court has attached to this order. The letter appears to be in response to the court's March 7, 2008 order, which directed plaintiff to retain counsel to comply with Rule 83.1(c)(8) of the Rules of the United States Court of Federal Claims ("RCFC"), and new counsel to file a motion to substitute attorney pursuant to RCFC 83.1(c)(4), by March 24, 2008.1 Plaintiff requests an additional ten days "to determine if a bonding company will represent [it] against the Government's improper termination of [its] contract, or if not, to take the alternate action that would be necessary." The court REJECTS the letter for the following reasons: · Plaintiff responded to the court's March 7, 2008 order out of time, as the order set a deadline of March 24, 2008. Construing plaintiff's letter as a motion for enlargement of time, it violates RCFC 6.1 in the following ways: (1) it did not provide a "day to which the enlargement is to run"; (2) it did not specify "the extent to which the time for the performance of the particular act has been previously enlarged"; and (3) it lacked "a representation that [plaintiff] has discussed the motion with [defendant] and a statement indicating whether an opposition will be filed, or

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Because an attorney failed to file a motion to substitute on plaintiff's behalf by March 24, 2008, the court issued an order to show cause in the morning of March 25, 2008, providing one week for plaintiff to show cause why its case should not be dismissed pursuant to RCFC 41(b). Because the order to show cause had not yet been mailed at the time the court received the fax transmission, plaintiff could not have been responding to it in its letter.

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Case 1:06-cv-00695-MMS

Document 36

Filed 03/25/2008

Page 2 of 2

if [defendant] cannot be consulted, an explanation of the efforts that were made to do so." · Plaintiff did not serve the attorney of record in violation of RCFC 5(b)(1). While Jeffrey S. Bucholtz is the Acting Assistant Attorney General for the Civil Division of the United States Department of Justice, the attorney of record in this case (and the attorney with whom a representative of plaintiff has consulted with in the past) is Sean M. Dunn. Mr. Dunn's Notice of Appearance, filed on September 4, 2007, indicates that he would receive service of all papers in this case. Plaintiff did not properly serve defendant pursuant to RCFC 5(b)(2)(D), which only permits service by fax if defendant previously consented in writing to service in that manner. There is no indication that defendant has consented to service by fax. Furthermore, Mr. Dunn's Notice of Appearance specifies a different fax number than the one plaintiff included in its letter. Plaintiff's "proof of service" did not comply with RCFC 5.2, which requires that the certificate of service include the day of service.

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While the court declines to consider plaintiff's faxed letter, it is necessary to note that plaintiff appears to misconstrue the contents of the Joint Preliminary Status Report ("JPSR"). Nowhere in JPSR does defendant appear to "agree" that plaintiff has an invalid bond. In fact, in the portion of the JPSR provided by plaintiff, defendant indicates that it would oppose a motion to amend the complaint to include an allegation that "the termination for default was designed by the Bureau of Prisons to allow it to pursue the bonding company that issued an invalid bond." In conclusion, plaintiff is directed to comply with the court's March 25, 2008 order to show cause, and in doing so, plaintiff shall comply with the relevant RCFC. The Clerk is directed to deliver this order to plaintiff via United States mail, with return receipt requested, to the following address: Brickwood Contractors, Inc. c/o Peter Kalos, President P.O. Box 4685 Manassas, VA 20108-4685 IT IS SO ORDERED. s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge -2-