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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SITCO GENERAL TRADING AND CONTRACTING CO., W.W.L., a Kuwait Corporation, Plaintiff, v. THE UNITED STATES, Defendant.

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No. 07-226C (Judge Hodges)

DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS Pursuant to Rule 7.2(c) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits this reply to the response filed by plaintiff Sitco General Trading and Contracting Co., W.W.L., ("Sitco") in opposition to our motion to dismiss.1 In our motion to dismiss, we established that Sitco's complaint should be dismissed because: (1) Sitco, a Kuwaiti corporation, has not established reciprocity between the courts of the United States and Kuwait, an essential element of subject matter jurisdiction under the Reciprocity Act, 28 U.S.C. § 2502; and (2) Sitco filed its complaint without submitting its claims to the contracting officer, thereby depriving this Court of jurisdiction pursuant to the Tucker Act, 28 U.S.C. § 1491(a), and the Contract Disputes Act, 41 U.S.C. § 602, et seq. In its response, Sitco does not dispute either of these contentions. Rather, it states that its complaint is "voluntarily withdrawn pursuant to Rule 41, without prejudice as to the First Claim and with prejudice as to the Second Claim, to be replaced by an Amended Complaint pursuant to RCFC 15(a)." Pl. Opp. 1.

We will refer to the opening brief in support of our motion to dismiss as "Def. Mot. _," and we will refer to Sitco's response as "Pl. Opp. _."

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For the reasons addressed below, and for the reasons addressed in our opening brief, this Court should grant our motion to dismiss and dismiss Sitco's complaint, without prejudice as to the first claim, and with prejudice as to the second claim.2 Should this Court treat Sitco's response to our motion to dismiss as a motion pursuant to Rule 15(a), this Court should deny that motion. ARGUMENT I. Sitco's Complaint Should Be Dismissed This Court lacks jurisdiction over the claims in Sitco's complaint; accordingly, the complaint must be dismissed. RCFC 12(b)(1). Sitco bears the burden of showing that the Court possesses jurisdiction over its claims, and has completely failed to meet this burden. See McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In fact, its response contains no substantive response at all to the contentions set forth in our motion to dismiss. Despite the fact that it has not provided any substantive response to our motion to dismiss, Sitco is unwilling to stipulate to dismissal of its claims. It states in its response that it seeks to "withdraw" its complaint pursuant to Rule 41, to be "replaced" by an amended

As established in our motion, Sitco's second claim is without any basis, and Sitco's counsel already stated that Sitco would be withdrawing the claim as soon as counsel received authority to do so. Def. Mot. 7, n. 4. -2-

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complaint pursuant to Rule 15(a). Rule 41, however, only contemplates dismissal of an action, and is not compatible with the filing of an amended complaint. In fact, the rule explicitly states: an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Therefore, Sitco's request to "withdraw" its complaint, rather than dismiss it, is not permitted by the rules. Its complaint must be dismissed. II. Sitco Should Not Be Permitted To Amend Its Complaint Should this Court treat Sitco's response to our motion to dismiss as a motion for leave to amend its complaint pursuant to RCFC 15(a), leave should be denied. "The decision whether to allow leave to amend pleadings . . . is within the sound discretion of the trial court." First Interstate Bank of Billings v. United States, 61 F.3d 876, 881-82 (Fed. Cir. 1995). Any one of several factors, however, may justify the denial of a motion for leave to amend, including futility of the proposed amendment. See Te-Moak Bands of W. Shoshone Indians of Nevada v. United States, 948 F.2d 1258, 1260-61 (Fed. Cir. 1991) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). As this Court has stated, "[t]he existence of any one of these criteria is sufficient to deny a motion to amend, the theory being that the amendment would not be necessary to serve the interests of justice under the circumstances." Spalding & Son, 22 Cl. Ct. at 680 (emphasis added)." It would be futile for Sitco to amend its complaint. Sitco has provided no indication of the nature of its proposed amendment, nor has it even proposed a timetable for filing its amendment. To the contrary, its correspondence with the Government illustrates that it is unable

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to cure the defects identified in our motion to dismiss. For instance, Sitco's counsel indicates in the December 18, 2007 letter attached to Sitco's response to our motion to dismiss that he is not sure whether Sitco can show reciprocity between the courts of the United States and Kuwait. Similarly, Sitco provided an affidavit to the Government showing Sitco does not plan to file a CDA claim. See Affidavit of A. Luis Suarez, ¶ 7 (attached hereto at A1-3).3 Accordingly, it appears that any amendment of Sitco's complaint would be unable to cure the defects identified in our motion to dismiss, and therefore be futile. Therefore, it would not be in the interests of justice to grant Sitco leave to amend its complaint until such time as Sitco can demonstrate that it can cure these defects. CONCLUSION For the foregoing reasons, and for the reasons stated in our moving brief, defendant respectfully requests that the Court grant its motion to dismiss, dismiss Sitco's complaint with prejudice as to the second claim and without prejudice as to the first claim, and deny Sitco leave to file an amended complaint. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s Martin F. Hockey, Jr. MARTIN F. HOCKEY, JR. Assistant Director

We submit this document, sent to the Government as an attachment to Sitco's December 18, 2007 letter, only in response to Sitco's apparent request for leave to amend its complaint. We do not rely on this document in support of our motion to dismiss. -4-

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Of Counsel: J. MACKEY IVES Litigation Attorney General Litigation Branch Army Litigation Center 901 N. Stuart Street, Suite 400 Arlington, VA 22203 Tel: (703) 696-1616 Fax: (703) 696-2532

s/ Maame A.F. Ewusi-Mensah MAAME A.F. EWUSI-MENSAH 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) 353-0503 Fax: (202) 514-8624

January 3, 2008

Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 3rd day of January 2008, a copy of the foregoing "DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS" 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. The parties may access this filing through the Court's system.

s/ Maame A.F. Ewusi-Mensah

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APPENDIX

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INDEX TO APPENDIX Affidavit of A. Luis Suarez (Dec. 9, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1

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A1

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A2

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A3