Free Motion to Consolidate Cases - District Court of Federal Claims - federal

Case 1:07-cv-00255-MMS

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Filed 05/02/2007

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In the United States Court of Federal Claims
SECURITAS GmbH WERKSCHUTZ Am Stichlein 9 97424 Schweinfurt Germany Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) No. 07-255C ) Judge Margaret M. Sweeney ) ) ) )

PLAINTIFF'S MOTION TO CONSOLIDATE Pursuant to RCFC 42.1, Plaintiff, SECURITAS GmbH Werkschutz (SECURITAS), hereby moves to Consolidate, RCFC 42(a) this Civil Action with Fed. Cl. No. 07-256C (Reduction Costs) and Fed. Cl. 07-257C (Dual-Purpose Dogs). This Civil Action, Fed. Cl. No. 07-255C, concerns a Government Claim against SECURITAS for recoupment of 2,349,576 in payments made between October 2004 and August 2005 under an express Contract between SECURITAS and Headquarters,

Case 1:07-cv-00255-MMS

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United States Army, Europe (HQ, USAREUR), Contract Number DABN01-03-R0029. The second Civil Action, Fed. Cl. No. 07-256C, concerns a Deemed Denial, under 41 U.S.C. § 605(c)(2), of a certified Claim for 1,819,285 by SECURITAS under the same express Contract between SECURITAS and HQ, USAREUR, Contract Number DABN01-03-R-0029. The certified Claim in the second Civil Action concerns the Compliance with Local Labor Laws clause of Contract Number DABN01-03-R-0029 and results from claims or litigation against SECURITAS concerning compliance with German labor laws. The third Civil Action, Fed. Cl. No. 07-257C, concerns a Deemed Denial, under 41 U.S.C. § 605(c)(2), of a certified Claim for 230,373 by SECURITAS, again under the same express Contract between SECURITAS and HQ, USAREUR, Contract Number DABN01-03-R-0029. The certified Claim in the third Civil Action seeks an Award of money damages, these damages based on recovery of the sums paid by SECURITAS for 4 Dual-System Patrol Dogs, for 4 Dog Handlers and training, for the services of 4 Dog Handlers, for food and veterinary care for 4 Dual-System Patrol

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Case 1:07-cv-00255-MMS

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Dogs, and allowable interest under 41 U.S.C. § 611 on these sums paid by SECURITAS for Armed Patrol Dog Teams services ordered by HQ, USAREUR. Contract Number DABN01-03-R-0029 is a Requirements Contract awarded to SECURITAS on July 31st, 2003. Contract Number DABN01-03-R-0029 is effective for a base year and six one-year options. Contract Number DABN01-03-R-0029 is in its fourth year and Requirements to date total 135,572,136. Contract Number DABN01-03-R-0029 was awarded, and is administered, by the Wiesbaden Contracting Center, U.S. Army Contracting Command Europe, KonradAdenauer-Ring 39, 65187 Wiesbaden, Hessen, Germany. Wiesbaden is not more than 17 kilometers west of Frankfurt am Main, Hessen, Germany. SECURITAS operates from a Headquarters facility in Schweinfurt, Bavaria, Germany and from an Operations center in Würzburg am Main, Bavaria, Germany. Würzburg is 115 kilometers east of Frankfurt. Schweinfurt is 27 kilometers northwest of Würzburg. All of SECURITAS' files, and all of SECURITAS' officers and personnel with knowledges of these Civil Actions are located in Würzburg, else in Schweinfurt. On information and belief, all of the U.S. Army's files, and all of the U.S. Army's officers -3-

Case 1:07-cv-00255-MMS

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and personnel with knowledges of these Civil Actions are located in Wiesbaden, else in Heidelberg, Baden-Württemberg, Germany. A joint hearing or trial of these Civil Actions in Germany will reduce the burden on the parties, and the burden on the witnesses, and will conserve judicial resources. Because all these Civil Actions are now assigned to a single judge there is no risk of inconsistent adjudication of common factual and legal issues. Boston Edison Company v. United States, 67 Fed. Cl. 63, 65-66 (2005). These Civil Actions, all of which arise under the same Contract, nonetheless concern three distinct and separate Claims. One is a Government Claim and two are Contractor Claims. Consolidation of these Civil Actions beyond a joint hearing or trial, however, may impair the parties' rights to discovery--for instance, RCFC 33(a) limits parties to 25 interrogatories and thus consolidation of all three Civil Actions into a single Civil Action would reduce the total number of interrogatories that would otherwise be available in three unconsolidated Civil Actions. The Contract Disputes Act, 41 U.S.C. §§ 601-613, recognizes that a single Contract may give rise to distinct Claims, Rockwell Automation, Inc. v. United States, 70 Fed. Cl. 114, 126 (2006) and the rights conferred by litigating these distinct Claims -4-

Case 1:07-cv-00255-MMS

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ought not to be forfeited through a consolidation otherwise appropriate to reduce the burden on the parties and to conserve judicial resources. Defendant has authorized SECURITAS to represent that should SECURITAS move to consolidate these Civil Actions under RCFC 42 and 42.1, Defendant "would not object." Respectfully submitted, /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV District of Columbia Bar Number 456500, Virginia State Bar Number 03135 May 2nd, 2007 1828 L Street, N.W., Suite 660 Washington, D.C. 20036-5112 Telephone: Facsimile: Electronic Mail: (202) 466-7008 (202) 466-7009 [email protected]

Attorney of record for Plaintiff, SECURITAS GmbH Werkschutz.

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Case 1:07-cv-00255-MMS

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CERTIFICATE OF SERVICE I hereby certify, under penalty of perjury, that on Wednesday, May 2nd, 2007 a true and complete copy of this Plaintiff's Motion to Consolidate was filed electronically via the Court's Electronic Case Filing System, through which notice of this filing will be sent to: Armando Rodriguez-Feo, Esq. Electronic Mail: [email protected]

Attorney of record for Defendant, United States Army, Europe. /s/ Cyrus E. Phillips, IV Cyrus E. Phillips, IV

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