Free Order - District Court of Federal Claims - federal

Case 1:07-cv-00067-RHH

Document 11

Filed 08/24/2007

Page 1 of 1

In the United States Court of Federal Claims
* * * * * * * * * No. 07-67C Filed: August 24, 2007

BIOFUNCTION LLC, Plaintiff, v.

UNITED STATES OF AMERICA, * Defendant. * * * * * * * ORDER Defendant filed its Reply to Plaintiff's Opposition to Defendant's Partial Motion to Dismiss Plaintiff's Fourth and Fifth Causes of Action on June 4. This case is ready for consideration by the court. The Government is correct that an implied contract claim does not usually apply where an express contract covers the same subject matter, and normally this court does not consider unjust enrichment claims. However, the operative claims do appear to be within our jurisdiction and defendant has not argued otherwise. Therefore, we assume that counsel are proceeding with discovery and any issues that will apply regardless of the status of defendant's partial motion. In other words, we do not expect the parties to delay resolution of plaintiff's case by awaiting consideration of two parts of the claim that may not affect the outcome so far as liability is concerned. If counsel have any questions about the court's understanding of this case, we ask that they contact Ms. Fitzsimmons at 202/357-6572. Further, we ask that they file a joint status report on or before September 10 to describe the state of discovery and their plans regarding other pretrial matters.

s/Robert H. Hodges, Jr. Robert H. Hodges, Jr. Judge