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

Case 1:07-cv-00067-RHH

Document 23

Filed 01/09/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BIOFUNCTION, LLC, Plaintiff, v. THE UNITED STATES, Defendant.

) ) ) No. 07-67C ) (Judge Hodges) ) ) ) ) ) ) ) REQUEST FOR DEFAULT

TO: THE CLERK OF THE ABOVE-ENTITLED COURT Plaintiff, Biofunction LLC hereby requests that the Clerk of the above-entitled Court enter default in this matter against defendant THE UNITED STATES, on the ground that said defendant has failed to respond to the complaint within the time prescribed by the Rules of the United States Court of Claims. Plaintiff served the complaint on defendant on or about January 29, 2007. This request is supported by the affidavit of Barbara J. Massey, filed herewith. The United States filed its notice of appearance with this court on February 6, 2007. On May 4, 2007, the United States filed a partial motion to dismiss the fourth and fifth causes of action after multiple briefings and a telephone hearing on the issues, this court issued an order stating, in pertinent part: The important issues are partly factual. If plaintiff performed duties not contemplated 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 considered without the scope of the original 1

Case 1:07-cv-00067-RHH

Document 23

Filed 01/09/2008

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contract. The parties should develop the issue of authority and whether the services were accepted by the Government. The court's ruled that the issues raised by defendants' partial motion to dismiss cannot be determined without a factual hearing. The Court's ruling is a determination that the allegations of the complaint are sufficient to state a claim and is a denial of the motion for partial dismissal. The court's order was filed and served on December 20, 2007. Pursuant to the Rules of the United States Court of Claims Rule 12 (a)(2)(A), the defendant must file its answer within ten (10) days after denial of notice of the court's action. More than 10 days have passed since the court's order was filed. The Government has not filed any answer or other responsive pleading. Based on this Request and the application filed herewith, a default should be entered against the United States and the matter should be set for court hearing on plaintiff's application for default judgment. Dated January 9, 2008 Respectfully submitted,

__s/Barbara J. Massey__________________ DAVID W. GINN Law Offices of David W. Ginn 1981 N. Broadway, Suite 275 Walnut Creek, CA 94596 Tel: (925)256-4466 Fax: (925)256-4423 Attorneys for Plaintiff, Biofunction LLC

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Case 1:07-cv-00067-RHH

Document 23

Filed 01/09/2008

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CERTIFICATE OF SERVICE I,BARBARA J. MASSEY, 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: REQUEST FOR DEFAULT Service was made upon all counsel of record, including: Robert Bigler, Esq. Trial Attorney Commercial Litigation Branch Civil Division United States Department of Justice Washington, D.C. 20530 Phone (202) 307-0315 Fax: (202) 514-8624 e-mail: [email protected] 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 parties may access this filing through the Court's system.

_________s/Barbara J. Massey______

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