Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:07-cv-00719-MBH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MRAG AMERICAS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-719C (Judge Horn)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A, paragraph III, 4, of the Rules of the United States Court of Federal Claims ("RCFC"), the parties file the following joint preliminary status report: (a) Does the court have jurisdiction over the action? Plaintiff MRAG Americas, Inc., ("MRAG") believes that the Court has jurisdiction to entertain this action; the Government knows of no reason to question the jurisdiction of the Court over the action at this time. (b) Should this case be consolidated with any other case? The parties do not believe that this case should be consolidated with any other case. (c) Should trial of liability and damages be bifurcated? The parties are not aware of any reason why liability and damages should be tried separately. (d) Should further proceedings in this case be deferred pending consideration of another case

before this court or any other tribunal? The parties do not believe that further proceedings in this action should be delayed pending consideration of another case before this Court or any other tribunal.

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(e)

Will a remand or suspension be sought? The parties do not intend to request remand or suspension.

(f)

Will additional parties be joined? The parties do not believe that additional parties should be joined.

(g)

Does either party intend to file a motion pursuant to RCFC 12(b), 12(c) or 56? As a preliminary matter, the parties may each file a motion for summary judgment,

pursuant to RCFC 56, regarding contract interpretation, on the issue of whether the Gulf Coast Contract required MRAG to provide 335 surveys to the Government, for successful completion of the contract; and, whether the Southern Atlantic Contract required MRAG to provide 260 surveys to the Government, for successful completion of the contract. Depending upon the outcome of the first dispositive motion regarding contract interpretation and following the conclusion of discovery, the parties may file a second motion for summary judgment, regarding MRAG's claims that the Government improperly terminated the Gulf Coast Contract for default and breached the Gulf Coast Contract by refusing to make full payment (Count I); and that the Government breached the Southern Atlantic Contract by failing to make full and timely payment (Count II). While the parties agree that it is unlikely that other dispositive motions will be filed, the parties request that, on or before 30 days after the conclusion of discovery, they be allowed to file a status report regarding the appropriateness of filing any further dispositive motions. (h) What are the relevant factual and issues? The following are issues that at this time identify the dispute between the parties. Although the issues identified by each of the parties are similar, the differing views of the parties regarding some of the issues and facts have led the parties to suggest separate statements of 2

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relevant issues. As discovery progresses, new information may become evident, or new issues may become apparent, that will lead the parties to a unified set of issues, or that may cause the parties to need to supplement or amend this listing. The parties respectfully request that the Court allow the parties to so supplement or amend this list of issues as future circumstances dictate. A. Plaintiff's Statement Regarding The Relevant Issues This case involves two contracts under which MRAG assisted the Government in the execution of programs to collect socioeconomic data from third-party shrimp fishing vessel owners along the Gulf Coast and the Southern Atlantic Coast. The relevant legal issues center on whether the Government breached Contract No. WC133F-04-CN-0062 ("South Atlantic Contract") and Contract No. WC133F-03-CN-0044 ("Gulf Coast Contract") by failing to pay the remaining balance due for services performed by Plaintiff and whether the Government's default termination of the Gulf Coast Contract was justified. The primary legal issue concerns the interpretation of both contracts. The only basis provided by the Government for its failure to pay and its default termination is its contention that both contracts required Plaintiff to guarantee that a minimum number of third-party shrimp fishermen would voluntarily participate and complete the survey. MRAG asserts that the contracts did not include such a requirement. Based on the communications between Plaintiff and the Government during the period of Plaintiff's performance, Plaintiff is not aware of any other factual issues regarding its performance that justify either nonpayment or default termination.

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B. Defendant's Statement Regarding The Relevant Issues (i). Government's Factual Issues 1. Whether MRAG's failure to perform in accordance with the requirements under

the Gulf Coast Contract rendered it in default of its performance under the contract, making the termination for default reasonable. 2. Whether MRAG has sustained its burden of proving that it performed all services

required by the Southern Atlantic Contract. (ii). Government's Legal Issues 1. Whether the Gulf Coast Contract required MRAG to provide 335 completed

surveys to the Government, for successful completion of the contract. 2. Whether the Southern Atlantic Contract required MRAG to provide 260

completed surveys to the Government, for successful completion of the contract. (i) What is the likelihood of settlement? Is alternative dispute resolution contemplated? The parties are open to the possibility of settlement, and the use of ADR, throughout the proceedings, but, at this time, the parties are not in a position to characterize the likelihood of settlement. (j) Do the parties anticipate proceeding to trial? If this case does not settle, or is not otherwise resolved upon dispositive motion, the parties will proceed to trial. The parties agree that an expedited trial pursuant to paragraph 4(j) of Appendix A is not warranted. MRAG believes that the parties have ample time to prepare for a trial by June 1, 2009, and requests a trial date as soon thereafter as is convenient to the Court.

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The Government believes that the earliest date that it could reasonably be expected to be ready for trial is August 4, 2009, or as soon thereafter as convenient to the Court. Joint Proposed Schedule For their proposed discovery plan, the parties respectfully suggest the following schedule to the Court: 5/2/08; Initial disclosures. 6/30/08; Final date for filing of first dispositive motions regarding contract interpretation. 3/1/09; End of non-expert discovery. All non-expert discovery requests shall be served so that, pursuant to the Rules of Court, the required responses shall be due no later than 3/1/09. 12/21/08; Expert Disclosures (if necessary), pursuant to RCFC 26 (a)(2)(C). 4/1/09; Plaintiff's requested date for filing of second dispositive motions. 5/1/09; Government's requested date for filing of second dispositive motions. (k) Are there special issues regarding electronic case management needs? The parties are not aware of any special issues regarding electronic case management needs. (l) Is there any other information of which the Court should be aware at this time? The parties are unaware of any other matters which should be brought to the Court's attention at this time.

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Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director

s/ Martin F. Hockey, Jr. MARTIN F. HOCKEY, JR. Assistant Director

s/ David S. Black DAVID S. BLACK Holland & Knight LLP 1600 Tysons Boulevard, Suite 700 McLean, VA 22102-4867 tel: (703) 720-8600 fax: (703) 720-8610

s/ Joseph A. Pixley JOSEPH A. PIXLEY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 307-0843 Fax: (202) 307-0972 Attorneys for Defendant

Attorney for Plaintiff

March 17, 2008

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CERTIFICATE OF FILING

I hereby certify that on the 17th day of March, 2008, a copy of the foregoing "JOINT PRELIMINARY STATUS REPORT" 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/Joseph A. Pixley

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