Free Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 1 of 14

IN THE UNITED STATES COURT OF FEDERAL CLAIMS BRICKWOOD CONTRACTORS, INC., Plaintiff, v. THE UNITED STATES Defendant. RESPONSE OF BRICKWOOD CONTRACTORS, INC. TO MOTION TO DISMISS Comes now, Brickwood Contractors Inc., by counsel, and states the following in opposition to the Motion to Dismiss ("Motion to Dismiss") filed by Defendant The United States: ISSUE PRESENTED As styled by Defendant, the issue is whether the Court should dismiss the Complaint filed by Brickwood on the basis that the Court lacks subject matter jurisdiction due to a statute of limitations. In reality, Defendant has not filed a Motion to Dismiss based upon the lack of subject matter jurisdiction. Instead it has filed a Motion for Summary Judgment, without filing an answer to the complaint, based upon the affirmative defense of the statute of limitations. STANDARD OF REVIEW--MOTION TO DISMISS A plaintiff has the burden of establishing the court's subject matter jurisdiction over its claims. When deciding whether it possesses jurisdiction over a case, the court must "draw all reasonable inferences in favor of the plaintiff" and accept the facts as they are presented in the plaintiff's complaint as true. If the undisputed facts in the complaint reveal any possible basis on which the plaintiff might prevail, the court must deny the motion to dismiss. Engineered Demolition, Inc. v. United States, (USCFC Case No. 03-2231C, Judge Lettow, filed March 28, 2006., p. 7.) (Fed. Cl. citation unknown.) (Citations omitted.) Case No.: 1:06-cv-695-EJD

1

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 2 of 14

Thus, under the Tucker Act, the United States waives sovereign immunity and consents to be sued over contract disputes. However, the Tucker Act is merely a jurisdictional statute and does not confer a substantive, enforceable right against the United States. The substantive right must appear in another source of law. . . . In this case, the substantive source of law is the Contract Disputes Act of 1978 ("CDA"), Pub. L. No. 95-563, 92 Stat. 2383 (codified as amended at 41 U.S.C. §§ 601-613 (2000)). C.D. Hayes, Inc. v. United States, (USCFC Case No. 01-376C, Judge Sweeney, filed November 30, 2006., p. 7) (Fed. Cl. citation unknown.) (Citations omitted.)

ARGUMENT-MOTION TO DISMISS Accepting the allegations of plaintiff's complaint as true, plaintiff has met its burden of establishing this Court's subject matter jurisdiction. In paragraph three of the Complaint, plaintiff specifically alleges jurisdiction of the Court is proper "pursuant in the Tucker Act (28 U.S.C. § 1491)." Plaintiff's Complaint, ¶ 3. Plaintiff further alleges in paragraph three of the Complaint that the source of law conferring a substantive, enforceable right against the United States is the "Contract Disputes Act of 1978, as amended (41 U.S.C. §§ 601, et seq.)." Plaintiff's Complaint, ¶ 3. Defendant concedes in its Motion to Dismiss that Plaintiff "brings this action pursuant to the Contract Disputes Act of 1978". Defendant's Motion to Dismiss, p. 3. Defendant, of course, further concedes that this Court has subject matter jurisdiction over Plaintiff's claim by arguing that the statute of limitations contained in 41 U.S.C. § 609(a)(3) operates as a bar to Plaintiff's claim. If this Court lacked subject matter jurisdiction, then it would be without power to render a decision based upon a statute of limitations. STANDARD OF REVIEW--MOTION FOR SUMMARY JUDGMENT Summary judgment may be granted `if . . . [the record] show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden of establishing that no genuine issue of material fact exists rests with the moving party. A dispute is considered to be

2

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 3 of 14

`genuine' if it `may reasonably be resolved in favor of either party.' If a fact `might affect the outcome of the suite under the governing law,' it will be deemed `material.' When deciding a motion on summary judgment, the court must resolve all inferences `in the light most favorable to the party opposing the motion.' Engineered Demolition, Inc. v. United States, (USCFC Case No. 03-2231C, Judge Lettow, filed March 28, 2006., pp. 7-8.) (Fed. Cl. citation unknown.) (Citations omitted.) Pursuant to the Contract Disputes Act of 1978, an action "shall be filed within twelve months from the date of the receipt by the contractor of the decision of the contracting officer concerning the claim . . . ." 41 U.S.C. § 608(a)(3). The CDA requires that "[t]he contracting officer shall issue his decisions in writing, and shall mail or otherwise furnish a copy of the decision to the contractor." § 605(a). The implementing regulations further require that the decision is to be provided to the contractor via "certified mail, return receipt requested, or by any other method that provides evidence of receipt." 48 C.F.R. § 33.211(b) (2004) (emphasis added). The Federal Circuit has interpreted receipt by the contractor to mean "actual physical receipt of that decision by the contractor [or his representative]." Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed.Cir.1991) (quoting Pathman Constr. v. United States, 817 F.2d 1573, 1577 (Fed.Cir.1987)). "[O]bjective indicia of receipt by the contractor" must be shown to establish the date of proper delivery of the decision by the contracting officer. See Borough of Alpine, 923 F.2d at 172. This court has found that "[b]y linking the limitations period to receipt by the contractor, the CDA eliminates disputes about the time of actual notice, fault and misaddressing a letter, or the internal mail procedures of various contractors." Id. at 172. Riley & Ephriam Const. Co., Inc. v. U.S., 408 F.3d 1369, p. 1372 (Fed. Cir., 2005).

ARGUMENT--MOTION FOR SUMMARY JUDGMENT A party has a duty to plead affirmative defenses, such as the statute of limitations, in its Answer. See RCFC 7, 8. To the extent that Defendant has properly pled the statute of

3

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 4 of 14

limitations, Plaintiff relies on the allegations of its Complaint and the Declaration of Peter Kalos in opposition to the Motion for Summary Judgment. A copy of the Declaration of Peter Kalos is attached hereto as Exhibit 1. Defendant agrees that signed the return receipt for the Termination for Default on October 8, 2005. Kruskie Declaration, p. 2, ¶6. Defendant agrees that if Plaintiff received the notice of termination on October 8, 2005 "the filing of the complaint on October 10, 2006 was `within twelve months from the date of receipt,'and therefore timely." Defendant's Motion, pp. 3-4. Filing the complaint on October 10, 2006 was timely due to the fact that Monday, October 9, 2006 was Columbus Day, a legal holiday. See 5 U.S.C. § 6103. "Legal holidays" are not calculated in the computation of the applicable period of time to determine when the complaint must be filed. RCFC 4(a). Reviewing the facts, to the extent properly established by Defendant, in the light most favorable to Plaintiff compels this Court to dismiss the Motion for Summary Judgment. Defendant argues that because it possesses a facsimile confirmation sheet and has absolutely no confirmation of receipt by Plaintiff, it is entitled to summary judgment. Defendant relies heavily on the Declaration of Robert J. Kruskie in support of its argument. However, the Declaration reveals the deficiencies of Defendant's arguments. In sum, the Kruskie Declaration proves only that the Notice of Termination was transmitted to a facsimile machine on September 15, 2005 and that he was unable to obtain any evidence that Plaintiff actually received the Notice of Termination until October 8, 2005. See Kruskie Declaration. The fact Mr. Kruskie improperly addressed the envelope of the Notice of Termination certainly contributed to the length of time elapsed prior to receipt by Plaintiff. See Peter J. Kalos Declaration.

4

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 5 of 14

Additionally, Defendant disingenuously states that "[w]e are aware that in Riley the court suggested that a facsimile confirmation sheet alone may not be sufficient evidence of receipt." Defendant's Motion, p. 5. This case cited by Defendant is completely adverse to the position stated in its Motion to Dismiss. In Riley & Ephriam Const. Co., Inc. v. U.S., the Court of Federal Claims granted summary judgment to the United States, based in part, upon evidence of transmission of a facsimile of the contracting officer's decision, without any further indicia of actual receipt. See Riley & Ephriam Const. Co., Inc. v. U.S., 408 F.3d 1369 (Fed. Cir., 2005). In reversing this ruling the Federal Circuit stated [p]roof of message exit from a transmitting machine cannot serve as a proxy for proof of actual receipt of the sent message by a remote receiving terminal. . . . We correspondingly find that receipt by the contractor cannot be inferred from the contracting officer's statement that the machine indicated a successful transmission. In essence, the government has not offered any evidence that the fax was actually received by the contractor's attorney. Therefore the Court of Federal Claims erroneously measured the statute of limitations from the date of the fax transmission. Riley & Ephriam Const. Co., Inc. v. U.S., 408 F.3d 1369, pp.1372-1373, (Fed. Cir., 2005) (citations ommitted). It is clear from the holding in Riley that the mere transmission of a facsimile is insufficient evidence of actual receipt of that decision by Brickwood. As a result, Defendants attempts to bootstrap an utter lack of evidence of receipt into prevailing upon a motion for summary judgment must fail. WHEREFORE, Brickwood Contractors, Inc., by counsel, requests that the Court enter an order dismissing Defendant's Motion to Dismiss, directing Defendant to file an Answer and granting such further and other relief as the Court deems necessary and proper.

5

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 6 of 14

Respectfully Submitted, Brickwood Contractors, Inc. by counsel s/ Scott J. Newton Scott J. Newton, VSB #44397 Stephens, Boatwright, Primeau, Cooper & Coleman 9255 Lee Avenue Manassas, VA 20110 (703) 361-8246 (703) 361-4171 Facsimile [email protected] CERTIFICATE OF SERVICE
I hereby certify that on the __21______ day of February 2007 a copy of the foregoing "Motion to Substitute Attorney" 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/ Scott J. Newton Scott J. Newton

6

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 7 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 8 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 9 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 10 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 11 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 12 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 13 of 14

Case 1:06-cv-00695-MMS

Document 17

Filed 02/21/2007

Page 14 of 14