Free Order on Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

Document 126

Filed 12/01/2006

Page 1 of 1

In The United States Court of Federal Claims
No. 03-289C (Filed: December 1, 2006) __________ UNITED MEDICAL SUPPLY COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant. __________ ORDER ___________ On November 28, 2006, plaintiff filed an unopposed motion to partially dismiss certain of its claims without prejudice. Paragraph 110 of plaintiff's amended complaint alleges that defendant is in breach of contract for, inter alia, "failure to pay for medical supplies and equipment purchased and received," and paragraph 116 seeks an equitable adjustment to include unpaid invoices. In its partial motion to dismiss, plaintiff states that it failed to present this claim to the contracting officer. As a result, this court lacks jurisdiction over the claim pursuant to Section 10(a)(1) of the Contract Disputes Act. Accordingly, plaintiff's motion is hereby GRANTED, and the above-referenced sections of paragraphs 110 and 116 of plaintiff's amended complaint are dismissed without prejudice. If plaintiff properly presents the claim to the contracting officer, and such claim is subsequently denied, plaintiff may file a new complaint, and the Clerk is hereby directed to: 1. Waive any filing fees as to that complaint that would otherwise be due pursuant to RCFC 77.1(c); and Assign any such complaint to the undersigned judge, to allow it to be consolidated pursuant to RCFC 42(a) with Case No. 03-289C.

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IT IS SO ORDERED.

s/ Francis M. Allegra Francis M. Allegra Judge