Free Motion to Dismiss - Rule 12(b)(6) - District Court of Federal Claims - federal

Case 1:07-cv-00076-LMB

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Filed 12/11/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MASS HAULING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-76C (Judge Baskir)

DEFENDANT'S MOTION TO DISMISS Pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"), the United States respectfully requests that the Court dismiss counts I-IV of Mass Hauling Corporation's (MHC) complaint for failure to state a claim upon which relief may be granted. Pursuant to RCFC 12(b)(1), we also respectfully request that count V of the complaint be dismissed for lack of subject matter jurisdiction. Having never performed any work pursuant to the contract at issue, MHC can make no cognizable claim for the lost profits it seeks for counts I-IV of the complaint. Moreover, this Court does not possess jurisdiction to entertain MHC's declaratory judgment claim in count V of its complaint because this claim for equitable relief is unrelated to a money judgment.

Case 1:07-cv-00076-LMB

Document 23

Filed 12/11/2007

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In support of this motion, we rely upon the complaint and the corresponding memorandum of law in support of our motion. Respectfully submitted,

JEFFREY S. BUCKHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director

DONALD E. KINNER Assistant Director s/ David M. Hibey DAVID M. HIBEY 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) 307-0163 Fax: (202) 514-8624 Attorneys for Defendant

December 11, 2007

Case 1:07-cv-00076-LMB

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Filed 12/11/2007

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CERTIFICATE OF FILING I hereby certify that on this 11th day of December, 2007, a copy of the foregoing "Defendant's 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. Parties may access this filing through the Court's system. s/ David M. Hibey