Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:07-cv-00056-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BASS MANAGEMENT, INC. VS. UNITED STATES OF AMERICA MOTION FOR LEAVE TO AMEND COMPLAINT B s Maae etIc ( as)epc u yr us under Rule 15(a) of the Rules of as ngm n n." s r et l e et , B " s fl q s t U idSa s oro Fdr Ca s " C C )oa edi cm ln t adt r a d h n e te C ut f ee l lm ( F " t m n t o p i o d h e t e t t a i R s at e le Count VIII: Reformation and Restitution. In support, Bass offers: Introduction 1. Bass filed its complaint in this matter on January 24, 2007. [Docket Entry 1]. PLAINTIFF CASE NO.: 07-56C DEFENDANT

Four days later on January 29, 2007, Bass amended the complaint due to typographical errors in the original pleading. [Docket Entry 5]. No substantive changes were made. 2. The Complaint, brought under the Contract Dispute Act, 41 U.S.C. § 601, et. seq.

and the Tucker Act, 28 U.S.C. § 1491, seeks relief for a contract between Bass and the U.S. Army Corps of Engineers in Vicksburg. 3. O Ma h2, 07 t U idSa so A e c ( oe m n ) t og n r 1 20, h n e te f m r a " vr et , h uh c e t t i G n " r

counsel, requested an extension to respond, which was unopposed and granted. [Docket Entry 8]. On April 25, 2007, the Government filed its answer. [Docket Entry 9]. A. 4. LEAVE TO AMEND SHOULD BE FREELY GIVEN U dr u 1( , aeo m n "hlb f e g e w e j te o eu e. neR l 5a l v t a ed sa e r l i n hn u i s r i s e )e l ey v sc qr "

As cited in the Court of Federal Claims: R l1( dc r t tev t a ed sa b f e g e w e j te u 5a el e h l eo m n ` l e r l i n hn u i e ) as a a hl ey v sc s r u e' t s m na i t b hee. I t udr i f t o o e is h q r ; i adt s o e edd f h ne y g a s r e e ln c circumstances relied upon by a [P]laintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason ­such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

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of allowance of the amendment, futility of amendment, etc., - the leave sought sol a t rl r u eb `el g e. hu ,sh u se i ,ef e i n d e e qr r y v ' ATK Thiokol, Inc. v. United States, 72 Fed. Cl. 306, 313 (Fed. Cl. 2006) (citing and quoting Foman v. Davis, 371 U.S. 178 (1962)). 5. Bass seeks leave to amend to add claims for reformation and restitution. See

E h i" . These claims are an alternative legal theory for relief for the underlying contract xi t A" b dispute at issue. The claims are meritorious and should be heard at the same time as the other contract claims. 6. The amendment does not alter the underlying facts previously pleaded. The

amendment also corrects typographical errors, including the date of the letter cited in paragraph 86, which appears as Exhibit G to the Amended Complaint. B. 7. REFORMATION AND RESTITUTION PROPERLY HEARD WITH THIS ACTION Federal Claims courts have jurisdiction to hear reformation claims in addition to

other contract-based actions where money damages are sought. See Gould, Inc. v. United States, 67 F.3d 925, 928 (Fed. Cir. 1995). " r ioay cut hv r ot t r om t n i Ta t nl , or ae e r d o e r ao,n di l s s e f i instances of mutual mistake, to conform the words of a contract to those the parties actually i edd Bromley Contracting Co., Inc. v. United States, 596 F.2d 448, 454 (Ct. Cl. 1979). n ne. t " " h proe fe r ao itm k a e cv w in cnom t at eetxr s n o T e ups o r om t nso ae df t e ri ofr o n cdn epe i s n f i ei tg e so w i t pre ar d Bromley, 596 F.2d at 454. h hh a i ge . c e ts e " 8. Moreover, restitution is a proper remedy for a private party to seek against the

government. Landmark Land Co., Inc. v. Federal Deposit Ins. Corp., 256 F.3d 1365, 1371-72 (e. i 20) " e t U idSa set s n cn ate t n, rights and duties Fd Cr 01 ( . Whn h n e te n r i o ot c r aos its e t t e t r li t r na gvre gnr l b t l ap cb t cn atbtenpi t i i da " h e r oe d ee l y h a plal o ot c e e r a n v ul ) ei e n ay e w i e r s w ve di s (citing United States v. Winstar Corp., 518 U.S. 839, 895 (1996)). 9. Here, Bass seeks reformation of the contract with the Corps and Bass seeks

restitution of excess rent paid to the Corps under the reformed contract. Specifically, Bass seeks

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reformation of its Lease Agreement with the Corps to clarify that t poe df io o "rs h rpr e n i f gos e itn r e t includes only receipts of sublessees paid to Bass, nth sb s e' rs i o e e is cp" o t ul s s gos n m . e ee c Bass contends this i e r ao o "rs r e t is the one proper interpretation and the n r e t n f gos e i s t p ti cp" contract should be reformed to expressly reflect this. 10. Both reformation and restitution are interlinked with the already-existing contract

claims and, as noted, based on the same underlying facts. C. 11 NO PREJUDICE TO GOVERNMENT There is no undue delay, bad faith or dilatory motive in seeking leave to amend.

Bass notified the Government of its intention to file this amendment several months ago. Moreover, Bass included in the Joint Preliminary Status Report its intention to file this amendment to the complaint.1 Bass seeks leave to amend at an early stage in the litigation. In addition, no substantive amendments have previously been sought in this action. 12 No prejudice results to the Government by adding claims for restitution and

reformation. These claims track the already-existing contract claims. The Government incurs no new burden or surprise. As noted above, the Government has been on notice of these claims for months. Conclusion For the reasons stated above, Bass respectfully requests this Court grant leave to amend to add Count VIII: Reformation and Restitution to its complaint.

1 I te o t ri iay tu R pr( eot , e oe met oe it would challenge the amendment on a jurisdictional basis. n h Ji Pem nr Sa s eot" pr )t G vr n nt n l t R " h n d See Report at 5.

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Respectfully submitted, /s/ Frank W. Trapp FRANK W. TRAPP PHELPS DUNBAR LLP 111 East Capitol Street Suite 600 Jackson, Mississippi 39201 Telephone: 601/352-2300 Facsimile: 601/360-9777

CERTIFICATE OF SERVICE The undersigned attorney for Bass Management, Inc., does hereby certify that I have this date electronically filed the foregoing MOTION FOR LEAVE TO AMEND COMPLAINT with the Clerk of the Court using the ECF system which sent notification of such filing of the above and foregoing to the following: David M. Hibey, Esq. U. S. Department of Justice Civil Division 1100 L. Street NW Washington, DC 20530 SO CERTIFIED, this the 9th day of July, 2007. /s/Frank W. Trapp FRANK W. TRAPP

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