Free Motion for Entry of Default - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BIOFUNCTION, LLC,
Plaintiff,
v.

) )

) No.07-67C
) (Judge Hodges) ) )

THE UNITED STATES,
Defendant.

) ) )
) )

AFFIDAVIT OF BARBARA J. MASSEY IN SUPPORT OF REQUEST FOR DEFAULT
I, Barbara J. Massey, hereby swear and affrm,
1. I am an attorney at law, licensed to practice in the State of

California, and serve as the facts set forth below.

counsel for Plaintiff

B

iofunction LLC and I have personal knowledge of

2. The United States fied its notice of appearance in this case with this court on Februar 6,
2007. A true and correct copy of

the notice of appearance is attached to this affidavit as Exhibit

A.

3. On May 4,2007, the United States filed a parial motion to dismiss the fourth and fifth
causes of action. A trLle and correct copy of

the Governent's motion to dismiss the fourh and

fifth causes of

action ofplaintifrs complaint is attached to this affdavit as Exhibit B.

4. After multiple briefings and a telephone hearing on the issues, this court issued an order
on December 20, 2007 stating, in pertinent part:
The important issues are partly factuaL. If plaintiff performed duties not comtemplated by the contract but their benefits were accepted by the Government, defendant may have an obligation to pay for them. We do not have a copy of the a contract or the modifications, and do not know whether the services can be

1

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considered without the scope of

the original contract. The paries

should develop the issue of authority and whether the services were accepted by the Government.
A true and correct copy of the court's order of

December 20,2007 is attached to this affdavit as

Exhibit C.

5. On December 20,2007, I communicated Biofunction's request that the Governent

answer its complaint to Mr. Robert Bigler via e-mail at his e-mail address,
Robert.Bigler~usdoi.!.()v. A true and correct copy of

my e-mail correspondence to him is

attached hereto as Ex ii i bit D.

6. A true and correct copy ofMr. Bigler's response refusing to provide an answer is attached
hereto as Exhibit E.

7. On December 24, 2007, I communicated Biofunction's intent to take the Governent's
default to Mr. Robert Bigler via e-mail at his e-mail address, Robert.Bigler~usdoi.gov. A tre
and correct copy of

my e-mail correspondence to him is attached hereto as Exhibit F.

8. On December 28,2007, I received Mr. Bigler's response to my December 24,2007 email indicating his position that the Government's motion was not denied. A true and correct
copy ofMr. Bigler's e-mail correspondence to me is attached hereto as Exhibit G.
9. The Government did not file its answer within ten (10) days after notice that this court

denied its motion for partial dismissaL.
I declare under penalty of

perjury that the foregoing is true and correct, and that this declaration

was signed in Walnut Creek, California on January 9,2007.

s/Barbara J. Massey

BARBAR 1. MASSEY
David W. Ginn 1981 N. Broadway, Suite 275 Walnut Creek, CA 94596 Tel: (925)256-4466
Law Offices of

Fax: (925)256-4423

Attorneys for Plaintiff, Biofunction LLC
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CERTIFICATE OF SERVICE
I,BARARA J. MAS S I ~ Y, hereby certify that I am the attorney of record for Biofunction, LLC
and that on January 9,2008, I served a copy of

the attached:

TITLE OF DOCUMENT

Service was made upon all counsel ofrecord, including:
Robert Bigler, Esq. Trial Attorney Commcrcial Litigation Branch Civil Division United States Department of Justice Washington, D.C. 20530
Phone (202) 307-0315

Fax: (202) 514-8624

e-mail: Robcrt.Bigler~usdoi.gov
The method of service was by Electronic Court Filing in which the court in the usual course of business serves an electronic copy of the filed document upon all counsel of record. The paries may access this filing tlirough the Court's system.

s/Barbara J. Massey

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EXHIBIT A

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Case 1 :07-cv-00067-RHH Document 4 Filed 02/06/2007 Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BIOFUNCTION, LLC
Plaintiff,
v.
)

)
) ) )
)

No.07-67C
(Judge Robert H. Hodges)

THE UNITED STATES,
Defendant

) ) )

NOTICE OF APPEARANCE
To the Clerk:

Please enter the appearance of Robert C. Bigler, as attorney of record for the United

States. Service of all papers by opposing parties should be addressed as follows:

Robert C. Bigler Trial Attorney Commercial Litigation Branch Civil Division United States Department of Justice Washington, D.C. 20530
Phone: (202)307-03 15

Fax: (202)514-8624 E-mail: Robert. Bigler(£usdoj .gov
Attention:
Classi ¡ication Unit
i 100 L Street, N W, 811i Floor

Dated: February G, 2007

sl Robert C. Biiiler Robert C. Bigler Trial Attorney Commercial Litigation Branch Civil Division

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CERTIFICA IE OF FILING
I hereby certify that on this 6th day of February, 2007, a copy of

the foregoing "NOTICE
this fiing will be sent

OF APPEARANCE" was filed electronically. I understand that notice of

to all parties by operation of the Court's electronic filing system. Parties may access this filing
through the Court's system.

sl Robert C. Bigler

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EXHIBIT B

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BIOFUNCTION, LLC,
Plaintiff,
v.
) ) ) ) ) ) )

No. 07-67C
(Judge Hodges)

THE UNITED STATES,
Defendant.

)

DEFENDANT'S PARTIAL MOTION TO DISMISS PLAINTIFF'S FOURTH AND FIFTH CAUSES OF ACTION
Pursuant to Rule 12(b)(I) and 12(b)(6) of the Rules of the Court of

Federal Claims

("RCFC"), defendant, the United States, respectfully requests that the Court dismiss

plaintiffs Fourth Cause of Action (Breach ofImplied Contract), upon the ground that
plaintiff BioFunction, LLC ("BioFunction" or plaintiff) fails to state a claim upon which

relief can be granted and that the Court dismiss plaintiffs Fifth Cause of Action (Unjust
Enrichment), upon the ground that BioFunction fails to allege a claim within this Court's
limited jurisdiction.

OUESTIONS PRESENTED

Whether the Fourth Cause of Action states an implied contract claim upon which

relief can be granted. Whether this Court possesses jurisdiction to entertain the claim for
unjust enrichment alleged in the Fifth Cause of Action.
STATEMENT OF FACTS'

Plaintiff ßioFunction, LLC fied its complaint in this Court on January 29, 2007.

Complaint. In its complaint, BioFunction alleges five causes of action, including plaintiffs

this brief only, the factual allegations contained in plaintiffs complaint will be treated as true.

1 For the purposes of

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Fourth Cause of Action (Breach of Implied Contract) and Fifth Cause of Action (Unjust
Enrichment). .l

In its complaint, BioFunction alleges that on May 16,2004, BioFunction entered into
a written contract with the United States Postal Service ("USPS") identified as contract "1

BCHSO-03-F-5453." Complaint, ii 3. BioFunction further alleges that, under the terms of
the alleged contract, BioFunction:

agreed to provide certain services related to the evaluation of disabled workers and providing them with job offers tailored to accommodate each worker's disability. This work specifically included the use of the ErgoMatch or Ergo Wizard system that evaluated the extent of disabilities and, based on ergonomic analysis, pinpointed jobs, tasks and modifications for
accommodating the disability of

the employee.

Complaint, ii 3(a). BioFunction further alleges that this contract was modified on three

occasions on January 16,2004, July 2004 and February 8, 2005. Complaint, iiii 3(c)-(e).
BioFunction continues by alleging that on or about October 4,2004, USPS entered into an implied contract with USPS. Complaint, iiii 24-30. In that alleged agreement,
BioFunction "agreed to provide additional services support to USPS's plan to utilize the

Contract hits; ßIOFUNCTION agreed to provide training and additionaI support to assist the
USPS to offer suitable jobs to employees for whom the Ergo Wizard system identified to be
capable of

the work." Complaint, ii 26. BioFunction further alleges that in return, USPS

agreed that it would: (a) "properly distribute the job offers made to its disabled employees;"
(b) "contest and take appropriate administrative action if its job offers were rejected by its
disabled employees;" (c) "USPS would. . . assist BIOFUNCTION to verifY and

justifY the

accuracy and effectiveness of

its Ergo Wizard system. . . "; and (d) "USPS would provide

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BIOFUNCTION with a formal operational endorsement. . . for consideration of

potential

future expansion of its program. . ." Complaint, ii 27.

Similarly, in its Fifth Cause of Action for Unjust EnricHment, BioFunction alleges

that BioFunction allegedly "agreed to provide additional services support to USPS's plan to
utilize the Contract hits; BIOFUNCTION agreed to provide training and additional support to
assist the USPS to offer suitable jobs to employees for whom the Ergo Wizard system
identified to be capable of

the work." Complaint, ii 32. BioFunction alleges that, in return,

USPS agreed that it would: (a) "properly distribute the job offers made to its disabled

employees;" (b) "contest and take appropriate administrative action if its job offers were

rejected by its disabled employees;" (c) "USPS would. . . assist BIOFUNCTION to verify and justify the accuracy and effectiveness of its Ergo Wizard system. . . "; and (d) "USPS

would provide ßIOFUNCTION with a formal operational endorsement. . . for consideration

of potential future expansion of its program. . ." Complaint, ii 33. Plaintiff further alleges
that "USPS reccived the benefit ofBIOFUNCTION's services and. . . should not equitably
be allowed to retain the benefit of

the additional services without paying BIOFUNCTION . . .

." Complaint,'¡ 37.

ARGUMENT
Plaintiff's Fourth Cause of Action (Breach of

Implied Contract) should be dismissed

for failure to statc a claim upon which relief can be granted. Plaintiffs Fifth Cause of Action
(Unjust Enrichmcnt), should be dismissed because the Court lacks jurisdiction over unjust
enrichment claims.

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i. Standard Of Review

A motion to dismiss should be granted when, accepting the complaint's allegations as

true and drawing all inferences in favor ofthe plaintiff, it is evident that plaintiff is legally entitled to no relief. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Hamlet v. United States, 873 F.2d

1414,1416 (Fed. Cir. 1989); Farmers Grain Co. v. United States, 29 Fed. CI. 684, 686
(1993). When tlie absence of a viable claim appears on the face of

the complaint and is

obviously not curable, summary dismissal conserves both the Court's and the litigants'
resources. Brown v. Strickler, 422 F.2d ioOO, 1002 (6th Cir. 1970) (quoting Harmon v.
Superior Court, 307 F.2d 796, 797 (9th Cir. 1962)).
II. Plaintiffs Claim Of

Breach Of An Implied Contract Should Be Dismissed

Plaintiffs Fourth Cause of Action for breach of an implied contract should be

dismissed because plaintiff fails to state a claim upon which relief can be granted.

Specifically, Biorunction has alleged the existence of an express contract in its breach of
contract claim (Complaint, ir 3(a)); and purports to base an implied contract claim upon the

same contractual obligations addressed in the express contract. However, "(t)he existence of
an express contract precludes the existence of an implied contract dealing with the same

subject, unless the implied contract is entirely unrelated to the express contract." Atlas Corp.

v. United States, 895 F.2d 745, 754-55 (Fed. Cir. I990) (citing lIT Federal Support Services,
Inc. v. United States, 531 F.2d 522, 528 n. 12 (Ct. CI. 1976)). See also Schism v. United States, 316 F.3d 1259, I278 (Fed. Cir. 2002), cert. denied, 539 U.S. 910 (2003).

Here, Biorunction alleges that, under the terms of an express contract, BioFunction

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"agreed to provide certain services related to the evaluation of disabled workers. . . This
work specifically included the use of

the ErgoMatch or Ergo Wizard system that evaluated

the extent of disahilities and, based on ergonomic analysis, pinpointed iobs . . . ." Complaint,
i13(a) (emphasis added). Similarly, under its claim of breach of

an implied contract,

BioFunction alleges that it "agreed to provide training and additional support to assist the
USPS to offer suitable jobs to employees for whom the Ergo Wizard system identified to be
capable of

the work." Complaint, i126 (emphasis added). BioFunction's implied contract

claim is clearly not "entirely unrelated" to the express contract alleged in BioFunction's

breach of contract claim. As a result, BioFunction's claim for breach of an implied contract
should be dismissed for failure to state a claim upon which relief can be granted.
II. Plaintiff's Unjust Enrichment Claims Should Be Dismissed

Plaintifrs Fifth Cause of Action for Unjust Enrichment should be dismissed because
the Court lacks jurisdiction over unjust enrichment claims. This Court, like its predecessors,
the United States Claims Court and the United States Court of

Claims, is a court oflimited

jurisdiction. E.!.., Dynalectron Corp. v. United States, 4 CI. Ct. 424, 428, affd, 758 F.2d 665
(Fed. Cir. 1984) Crable). Absent congressional consent to entertain a claim against the
United States, the Court lacks authority to grant relief. g, United States v. Testan, 424

U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941).

The law is well-established in the United States Court of Appeals for the Federal

Circuit and this Court that claims based upon unjust enrichment are beyond this Court's

subject matter jurisdiction. In Aetna Casualty and Surety Co. v. United States, 655 F.2d 1047
(Ct. CI. 198 I), for example, a construction contractor and its surety sought to recover costs

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incurred in building a housing project. The contract in that case was not with the United
States, but financing for the project was insured by the Government, and the plaintiffs alleged

that "the United States has implicitly contracted (with the construction contractor) to provide

this low-cost housing." Id. at 1052. The Court of Claims rejected this theory as well as
plaintiffs' furthcr allegation that "jurisdiction is founded on a theory of

unjust

enrichment/equitable lien,":

Thc claim based on unjust enrichment/equitable lien is also bcyond our jurisdiction. Those doctrines, however, are based not on agreement but are equitable in nature. Both proceed from a perception that a party ought to be bound rather than
fì'om a conclusion that a part has agreed to be bound.

recovery is therefore based upon a contract implied in law, over which th is court has not been given jurisdiction.
Plaintiffs' unjust enrichment/equitable lien theory of Id. at 1059-60 (citing Merritt v. United States, 267 U.S. 338, 341 (1925), and Court of

Claims

precedent). Accord Centex Corp. v. United States, 49 Fed. CI. 691, 712 (2001) ("Plaintiffs'

unjust enrichment claim. . . to the extent it is independent of plaintiffs' breach of contract

claim, is also outside the subject matter jurisdiction ofthis court. . . .") (citations omitted);
Frank & Breslow. LLP v. United States, 43 Fed. CI. 65, 68 (1999) ("Plaintiffs claim of
unjust enrichmcnt is also beyond our jurisdiction. Contracts implied-in-Iaw do not fall under
the Tucker Act.") (citations omitted).
Hcrc, plaintiff

alleges, in its Fifth Cause of Action for unjust enrichment, that "USPS

received the bcncfit ofBIOFUNCTION's services and. . . should not equitably be allowed to
retain thc bcncfit of

the additional services without paying BIOFUNCTION . . . ."

Complaint, ~ 37 (cmphasis added). As this Court does not possess jurisdiction over unjust

enrichment claims, the Court should dismiss plaintiffs Fifth Cause of Action.
6

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CONCLUSION
As plaintiff's Fourth Cause of Action (Breach of

Implied Contract) fails to state a

claim upon which relief can be granted and because plaintifts Fifth Cause of Action (Unjust
Enrichment) is beyond this Court's limited jurisdiction, Defendant respectfully requests that
the Fourth and Fiflh Causes of Action ofplaintifrs complaint be dismissed with prejudice.

Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

JEANNE E. DAVIDSON Director

sl Steven J. Gilingham STEVEN J. GILLINGHAM Assistant Director

sl Robert C. Bigler ROBERT C. BIGLER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W., Attn: Classification Unit
8th Floor

Washington, D.C. 20530 Tele: (202) 307-0315
Fax: (202) 514-8624

May 4, 2007

Attorneys for Defendant

7

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CERTIFICATE OF SERVICE
I hcreby certify that on this 4th day of

May 2007, a copy ofthe foregoing

"DEFENDANT'S PARTIAL MOTION TO DISMISS PLAINTIFF'S FOURTH AND FIFTH
CAUSES OF ACTION" was filed electronically. I understand that notice of

this filing will

be sent to all partics by operation ofthe Court's electronic filing system. The parties may
access this filing through the Court's system.

sl Robert C. Bigler

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EXHIBIT C

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Case 1 :07-cv-00067-RHH Document 22

Filed 12/20/2007 Page 1 of 1

3Jn tùe Wníteb ~tates (!ourt of jfeberal (!laíms
*
* *

*

*

*
*

BIOFUNCTION, LLC,
Plaintiff,
v.

*

No.07-67C
Filed: December 20, 2007

*

UNITED STATES OF AMERICA, *
Defendant.
*
* *

*
*

*

*

ORDER
The parties' filings somehow were misplaced in the system; we regret this delay. The Government's positions as set out in its response to the court's questions do not seem entirely the consistent intemally. If the issue is whether plaintiffs services were within the scope of contract, defendant's position seems to be that they were not unelated yet not within the contract's scope either. Plaintifflists several individuals who attended the meeting from which these activities arose, yet the Government argues that plaintiff has not pointed to an authorized
govemment agent. We cannot tell whether all of these individuals were unauthorized or whether has not disclosed which one of the paries at the meeting defendant is merely stating that plaintiff was authorized. In any event, the Governent should have this information. The ITT case

defendant cited states that an implied contract in these circumstances requires that plaintiff undertake additional duties not contemplated by the written contract. As we understand it, this is plaintiff s contention.
The important issues are partly factuaL. If plaintiff performed duties not contemplated by the contract but their benefits were accepted by the Govemment, defendant may have an obligation to pay for them. We do not have a copy of the contract or the modifications, and do not know whether the services can be considered without the scope of the original contract. The parties should develop the issue of authority and whether the services were accepted by the
Government. A hearing on these issues, or stipulations of the facts necessar to rule on summar

judgment, will assist the court. If plaintiffs counsel will be in this area at a paricular time early next year, we would like to schedule a hearing then. Counsel may appear by telephone, however, if necessary.
s/Robert H. Hodges, Jr. Robert H. Hodges, Jr. Judge

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EXHIBIT D

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Barbara Massey
From: Barbara Massey
Sent: Thursday, December 20, 2007 11 :33 AM

To: 'robert.biglercæusdoj.gov'
Subject: Biofunction v. US

Dear Mr. Bigler, In view of the court's order today, we are expecting the US to fie its answer to the Biofunction
complaint within the ncxt 10 days pursuant to FRCP Rule 1 2( a)(2)(A). Barbara J. Massey

Law QfTces oç David W. Gínn

1981 N. 5roadwa.i, 5uíte 275
Walnut Creek, CA 9+5 y(Ç-)886 (925) 256-4466 Telephone (925) 256-4423 F ax

bmasseycæginnlaw.com

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EXHIBIT E

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Barbara Massey
From: Bigler, Robert (CIV) (Robert.Bigler(Çusdoj.gov)
Sent: Thursday, December 20,20072:16 PM

To: Barbara Massey
Subject: RE: Biofunction v. US

Ms. Massey,
The rules give us 10 days to answer once the court denies or partially denies our motion. The court has not even ruled on our motion and, as a result, we will not file an answer to the complaint until the Court either denies or partially denies our motion. The Court's order of today simply raises some issues and states that "A hearing on these issues, or stipulations of the facts necessary to rule on summary

judgment, will assist the court. If plaintiffs counsel will be in this area at a particular time early next year,
we would like to schedule a hearing then. Counsel may appear by telephone, however, if necessary." In other words, the Court simply deferred ruling on our motion until after the Court has an opportunity to discuss the matter with the parties.

Sincerely,
Bob Bigler

From: Barbara Massey (mailto:BMassey(§ginnlaw.com) Sent: Thursday, December 20, 2007 2:33 PM
To: Bigler, Robert (CIV)

Subject: Biofunction v. US

Dear Mr. Bigler, In view of the court's order today, we are expecting the US to fie its answer to the Biofuction
complaint within the next 10 days pursuant to FRCP Rule 1 2( a)(2)(A). Barbara J. Massey

Law O¡:¡ces of David W. Gínn i 98 i N. 5roadwa~, 5uíle 275

Walnut Creek, CA 9+):'6-)886
(925) 256-4466 Telephol1l:

(925) 256-4423 F ax

bmassey~ginnlaw.com

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EXHIBIT F

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Barbara Massey
From:

Barbara Massey
Monday, December 24, 2007 3:51 PM
'robert.b igleriæusdo j. gOY'

Sent:
To:

Cc:

David

Subject: Biofunction v. US

Dear Mr. Bigler,
In the Court's order of December 20,2007, the governent's demurrer was overrled because the legal claims made by Biofunction are legally suffcient to state a claim against the governent. As

the Court puts it, "Thc important issues are partly factual". The Court determined that the issues raised by the government rely on a factual determination. Such a factual determination is beyond
the scope of a demurrcr. It is, therefore, time for an answer to be filed by the governent.

To our understanding, no motion for summary judgment has been brought in this action. Moreover, consideration of a summary judgment motion before an answer has been fied, without proper notice, and without any opportunity for discovery would be a violation ofBiofunction's right to due process in the determination of its claims. Because there has been no answer on the
par of

the governent and because the governent has not submitted to any discovery request,

Biofunction is not inclined to stipulatc to facts for the ostensible purpose of making a ruling on a, yet unfied, summary judgment. We expect an answer to the Biofunction complaint by December 30,2007 in accordance with the RCFC, Rule 12 (a)(2)(A). Ifno answer is filed by the governent, the you need a brief extension of government's default will be sought pursuant to RCFC, Rule 55. If time to file the goveniment's answer, please do not hesitate to contact me.
Barbara J. Massey

provisions of

Law Ol+ices of David W. Ginn

1981 N. 5i-adwa~J 5uík 275
Walnut Creek, CA 9+5;',;-;'886 (925) 256-4466 Telephone
(925) 256-4423 F ax

bmassey~ginnlaw.com

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EXHIBIT G

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Barbara Massey
From: Bigler, Robert (CIV) (Robert.BiglerlIusdoj.govJ
Sent: Friday, December 28,20072:55 PM

To: Barbara Massey
Subject: RE: Biofunction v. US

Ms. Massey,

The order makes clear that Judge Hodges wants to discuss the matter before deciding our motion. As I stated in my previous email, our answer is not due until our motion is denied or partially denied. At most, it appears that Judge Hodges is considering converting our motion to a Rule 56 motion for summar judgment pursuant to Rule 12(b). According to the order, Judge Hodges wants to discuss this matter prior to deciding whether to convert our motion. As a result, you should contact the Court to set up a status conference. As I will be on paternity leave during the month of Januar and possibly early Februar. Please do not schedule the status conference until after February 7, 2008.
Bob Bigler

From: Barbara Massey (mailto:BMassey(§ginnlaw.com) Sent: Monday, December 24, 20076:51 PM
To: Bigler, Robert (CIV)

Cc: David Subject: Biofunction v. US

Dear Mr. Bigler,

December 20,2007, the governent's demurrer was overrled because the legal claims made by Biofuction are legally sufficient to state a claim against the government. As the Court puts it, "The important issues are parly factual". The Court determined that the issues
In the Court's order of

raised by the governent rely on a factual determination. Such a factual determination is beyond

the scope of a demurrer. It is, therefore, time for an answer to be fied by the governent.
To our understanding, no motion for summary judgment has been brought in this action. Moreover, consideration of a summar judgment motion before an answer has been fied, without proper notice, and without any opportunity for discovery would be a violation of Biofunction's right to due process in the determination of its claims. Because there has been no answer on the
par of the governent and because the governent has not submitted to any discovery request,

Biofunction is not inclined to stipulate to facts for the ostensible purpose of making a ruling on a, yet unfied, summar judgment.

We expect an answer to the Biofunction complaint by December 30,2007 in accordance with the provisions ofRCFC, Rule 12 (a)(2)(A). Ifno answer is fied by the governent, the governent's default will be sought pursuant to RCFC, Rule 55. If you need a brief extension of time to file the governent's answer, please do not hesitate to contact me.

12/31/2007

Case 1:07-cv-00067-RHH

Document 23-2

Filed 01/09/2008

Page 2 of2 Page 26 of 26

Barbara J. Massey

Law Offces of David W. Ginn

1981 N. 5roadwa.i, Suite 275

Walnut Creek, CA 9+596-)886
(925) 256-4466 Telephone (925) 256-4423 F ax

bmasseycæginnlaw.com

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