Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:06-cv-00695-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BRICKWOOD CONTRACTORS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-695C (Chief Judge Damich)

DEFENDANT'S MOTION TO DISMISS Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims, defendant, the United States, respectfully requests the Court to dismiss plaintiff's complaint for lack of subject matter jurisdiction. In support of our motion, we rely upon the following memorandum of law and the attached declaration of Robert J. Kruskie. ISSUE PRESENTED Whether this Court should dismiss plaintiff's complaint for lack of subject matter jurisdiction because it is barred by the 12-month statute of limitations contained in the Contract Disputes Act. STATEMENT OF THE CASE Plaintiff, Brickwood Contractors, Inc. ("Brickwood"), brings this action pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 601 et. seq., alleging wrongful termination for default. According to Brickwood, on or about July 23, 2003, the United States awarded Brickwood the contract for a water tank renovation project, Contract Number J20802c-011, whereby Brickwood agreed to perform certain construction services for the United States. Compl. ¶ 6. On or about June 30, 2005, the United States issued a cure notice to Brickwood with respect to Brickwood's performance on the contract. Compl. ¶ 9. On or about July 13,

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2005, Brickwood informed the United States, via letter, that the allegations contained in the cure notice were incorrect. Compl. ¶ 10. On or about July 28, 2005, the United States issued a show cause notice with respect to Brickwood's performance. Compl. ¶ 11. On or about October 8, 2005, Brickwood received the United States' notice of termination for default via certified mail. Compl. ¶ 12. The termination notice stated that the termination was a Final Decision. Id. Brickwood filed its complaint in this action on October 10, 2006. Brickwood alleges that it "performed all terms, obligations, duties and conditions of the Contract and any Modifications to the Contract, except to the extent excused." Compl. ¶ 13. Accordingly, Brickwood requests that this Court convert the termination for default to a termination for convenience and award Brickwood attorneys' fees, costs, and expenses. Compl. at 4. ARGUMENT I. Standard Of Review For Motions To Dismiss The Court of Federal Claims is a court of limited jurisdiction. Dynalectron Corp. v. United States, 4 Cl. Ct. 424, 428, aff'd, 758 F.2d 665 (Fed. Cir. 1984)(table). If the Court finds jurisdiction lacking as a matter of law, dismissal is required. Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). "Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (citing

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Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)). When considering a motion to dismiss based upon lack of subject matter jurisdiction, this Court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court may examine relevant evidence in order to resolve any factual disputes. See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999); Reynolds, 846 F.2d at 747. II. This Court Lacks Jurisdiction To Entertain Brickwood's Claim Because The Statute of Limitations Has Run The Contract Disputes Act ("CDA") provides that an action pursuant to a CDA claim "shall be filed within twelve months from the date of receipt by the contractor of the decision of the contracting officer concerning the claim." 41 U.S.C. § 609(a)(3). The CDA requires that the contracting officer "shall issue his decisions in writing, and shall mail or otherwise furnish a copy of the decision to the contractor." 41 U.S.C. § 605(a). The regulations implementing the CDA further specify that the decision is to be provided to the contractor via "certified mail, return receipt requested, or by any other method that provides evidence of receipt." 48 C.F.R. § 33.211(b). The Federal Circuit has interpreted receipt to mean "actual physical receipt of the decision by the contractor or his representative." Riley & Ephriam Constr. Co., Inc. v. United States, 408 F.3d 1369, 1372 (Fed. Cir. 2005) (quoting Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 1991)). "Objective indicia of receipt by the contractor" must be shown to establish the date of proper delivery." Id. According to Brickwood, the notice of termination for default ("notice") was first received via certified mail on October 8, 2005. Compl. ¶ 12. Based on this date, the filing of the complaint on October 10, 2006 was "within twelve months from the date of receipt," and 3

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therefore timely. See 41 U.S.C. § 609(a)(3). However, there is ample evidence that the termination notice was received on September 15, 2005 via facsimile, and therefore the complaint is untimely and is thus barred by the statute of limitations. A facsimile confirmation sheet shows a successful transmission of the termination notice to Brickwood's facsimile number of record on September 15, 2005 at 9:40. Attachment A to Kruskie Decl. The contracting officer, Robert J. Kruskie, has also testified that the termination notice was successfully sent to Brickwood via facsimile on September 15, 2005. Kruskie Decl. ¶ 3. Furthermore, immediately after successfully sending the notice to Brickwood via facsimile, Mr. Kruskie attempted to telephone Brickwood to confirm receipt of the notice but the phone call was not answered. Kruskie Decl. ¶ 4. Because the United States had previously experienced problems confirming Brickwood's receipt of documents,1 Mr. Kruskie also sent the termination notice to Brickwood's address of record via Federal Express on September 15, 2005. Kruskie Decl. ¶ 5. This mailing was returned undelivered. Id. Mr. Kruskie made three additional attempts to deliver the notice via Federal Express on September 19, September 20, and September 21, 2005. Id. These three mailings were also returned undelivered. Id. Mr. Kruskie mailed the termination notice to Brickwood's address of record via certified mail on September 15, 2005, but Brickwood did not sign for the mailing until October 8, 2005. Kruskie Decl. ¶ 6. The United States also would have attempted to hand deliver the termination notice to Brickwood (as it had done with the cure notice), but this was not an option because Brickwood had not been on the project site since mid-

As stated above, the United States issued a cure notice to Brickwood on June 30, 2005. The United states attempted to confirm receipt of the cure notice via approximately six facsimile transmissions, six phone calls, and four Federal Express mailings, all of which were unsuccessful. Kruskie Decl. ¶ 9. The United States was finally able to verify receipt of the cure notice by hand delivering it to Brickwood at the project site on July 6, 2005. Id. 4

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August 2005. Kruskie Decl. ¶ 7. We are aware that in Riley the court suggested that a facsimile confirmation sheet alone may not be sufficient evidence of receipt. See Riley, 408 F.3d at1372-73. However, Brickwood's avoidance of all communications from Mr. Kruskie after September 15, 2005 provides more than sufficient additional evidence that Brickwood received the notice via facsimile on that date. Brickwood received the notice, knew that Mr. Kruskie was required to confirm receipt, and made every possible effort to prevent him from doing so, just as it had done with respect to the June 30, 2005 cure notice. Ironically, Brickwood's avoidance of confirmation of receipt provides the strongest evidence that the facsimile was in fact received on September 15, 2005, and that therefore the complaint was untimely filed on October 10, 2006. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court dismiss the complaint for lack of jurisdiction. Respectfully Submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director /s/ DONALD E. KINNER DONALD E. KINNER Assistant Director

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Of Counsel: WILLIAM ROBINSON Federal Bureau of Prisons

/s/ MEREDYTH D. COHEN MEREDYTH D. COHEN 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) 353-7978 Fax: (202) 514-8624 Attorneys for Defendant

January 25, 2007

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IN

THE

UNITED

STATES

COURT

OF

FEDERAL

CLAIMS

.

BRICKWOOD

CONTRACTORS,

INC.,

)

)

f ,

Plaintiff,

)

)

v.

)

No.

06-695C

)

(Chief

Judge

Damich)

THE

UNITED

STATES,

)

)

Defendant.

)

DECLARATION OF ROBERT J. KRUSKIE
Pursuant to 28 V.S.C. § 1746, I, Robert J. Kniskie, declare that the following is true

and

correct

and

based

upon

my

personal

knowledge,

and

that

I

am

competent

to

testify

to

the

matters

contained

herein.

1.

I

am

a

contracting

officer

in

the

Field

Acquisition

Office/Central

Office

of

the

Federal

Bureau

of

Prisons

("fBOP").

I

have

been

a

warranted

contracting

officer

for

the

FBOP

for

almost

14

years.

I

have

been

in

my

current

position

since

February

2003.

I

am

the

contracting

ofQcer

for

solicitation

number

IFB

20802-0104,

for

the

restoration

of

a

water

tower

at

FCI

.Loretto,

Pennsylvania,

which

was

awarded

on

July

25,

2003,

to

Brickwood

Contractors,

Inc.

("Brickwood"),

under

contract

number

J20802c-0

11.

2.

I

am

over

the

ag@

of

18

and

have

personal

knowledge

of

the

matters

set

forth

herein

and

if

called

as

a

witness

could

competently

testify

thereto.

,~ ..
3. On September 15,2005, FBOP issued Brickwood the Termination for Default via

Modification

0010.

The

Termination

for

Default

was

successfully

sent

to

Brickwood

via

facsimile

transmission

to

the

facsimile

number

of

record

at

9:40

a.m.

on

September,

15,2005.

A

true

and

accurate

copy

of

the

facsimile

confirmation

sheet

is

attached

to

this

declaration

as

Attachment

A.

,.

:

,

:
:..c;';.,~ ~--

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4.

On September 15, 2005, after sending the Termination for Default via facsimile

transmission, FBOP attempted to place a phone call to Brickwood's phone number of record to confirm receipt of the document but the phone call was not answered. 5. Because FBOP had previously experienced problems obtaining from Brickwood

acknowledgment of receipt of documents, on September15,2005, FBOP also sent the Termination for Default via Federal Express. FBOP sent the Termination for Default to Brickwood's addressof record three additional times via Federal Express. The dates of these additional Federal Express mailings were September19, September20, and September21,2005. All four of the Federal Express mailings were returned undelivered. 6. The FBOP also mailed the Termination for Default (Modification 0010) via certified mail to

the addressof record on September 15,2005, but it was not signed for by Brickwood until October 8,2005. 7. Upon review of the contract file, I learned that Brickwood had not been on the project site

since the middle of August 2005. Thus, hand delivery and confirmation of receipt were not an option FBOP could pursue. 8. FBOP experienced similar difficulties establishing Brickwood's receipt of the FBOP's

Cure Notice. 9.

.

The Cure Notice was originally issued on June 30, 2005. FBOP made approximately six

unsuccessful facsimile transmissions, six unsuccessful phone calls, and four unsuccessful Federal Express mailings of the Cure Notice. According to the contractor daily log, FBOP was finally able to verify Brickwood's receipt of the Cure Notice through hand delivery on July 6, 2005. This was possible becauseBrickwoodwas still working at the project site during the time.

2
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A true and accurate copy of the contractor daily log is attached to this declaration as Attachment

B.

I declare under penalty of perjury that the foregoing is true and correct. Executed on January 25, 2007.

~'£l'~~

Robert J. Kruskie Contracting Officer Federal Bureau of Prisons Field Acquisition Office/Central Office

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Case 1:06-cv-00695-MMS

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Attachment A

09/15/05

THU 09:42

FAX 95705477689

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AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
2. AMENDMENT/MODIFICATION 0010 6. ISSUED Federal Field USP BY Bureau Acquisition Allenwood -2 Miles N. of Allenwood PA ADDRESS OF CONTRACTOR (No., 17810 street, county. State White and Zip Deer Code) 9A. AMENDMENT OF PA SOLICITATION of Prisons Office CODE NO.3. EFF. DATE

1
REQ. NO.

I

1

,

4.

REQUISITION/PURCHASE

(If applicable)

09/15/2005 7. ADMINISTERED Field USP P. O. Acquisition Allenwood Box 3500 BY Office (If other than

I

Route 15 Allenwood 8. NAME

17887 NO.

AND

Brickwood

Contractors

Inc. 9B. DATED (SEE/TEM 11) OF CONTRACT/ORDER NO.

11304

Industrial

Road

10A.

MODIFICATION

Manassas
,CODE 012567939 I FACILITY CODE

VA 20139-3910

X
10B.

J20802c.{)11
DATED (SEE ITEM 13)

1
07/25/2003

0

The

above Offers

numbered must Items

solicitation

is amended receipt and of this

as set forth amendment

in Item

14.

The

hour and

and date date

specified

for receipt

of Offers

0

IS extended, by one

D

IS not methods

extended. (a)

acknowledge 8 and 15, letter PLACE of this

prior 10 the hour copies

specified

in the solicitation receipt numbers. AND may hour

or as amended, of this

of the following copy

By completing

returning which includes FOR THE

of the amendment;

(b) By acknowledging and amendment HOUR change

amendment

on each

of the offer

submitted;

or (c) By separate AT THE If by virtue makes

or telegram

a reference RECEIPT

to the solicitation OF OFFERS already PRIOR

FAILURE DATE

OF YOUR MAY

ACKNOWLEDGEMENT RESULT IN REJECTION each OF

TO BE RECEIVED YOUR telegram OFFER. or letter

DESIGNATE'[) amendment

TO THE such

SPECIFIED by telegram specified.

you desire

to change

an offer

submitted, prior

be made and date

or letter.

provided

reference

to the solicitation

and this amendment,

and

is received

to the opening

-13.

THIS

ITEM

APPLIES

ONLY

TO

MODI

FICA

TIONS

OF

CONTRACTS/ORDERS,

-

IT MODIFIES A. THIS CHANGE ORDER IS ISSUED PURSUANT

THE TO:

CONTRACT/ORDER (Specify authority) THE

NO.

AS

DESCRIBED SET FORTH

IN

ITEM

14. MADE IN THE CONTRACT

CHANGES

IN ITEM

14 ARE

B.

ORDER NO. THE ABOVE appropriation

IN ITEM 10A NUMBERED date, etc.

CONTRACT/ORDER FORTH IN ITEM

IS MODIFIED t4, PURSUANT INTO

TO

REFLECT

THE

ADMINISTRATIVE OF FAR OF: 43.103

CHANGES (b).

(Such

as changes

in paying

office,

) SET

TO THE

AUTHORITY TO AUTHORITY

.c

C

THIS

SUPPLEMENTAL

AGREEMENT

IS ENTERED

PURSUANT

D. X E 14.

OTHER FAR

(Specify 52.249-10

type

of modification (Fixed-Price ~

and

authority) Construction) 0 is required to sign this document section and return including 0= solicitation/contract subject copies matter to issuing where office

Default

IMPORTANT: DESCRIPTION

Contractor OF

is not

AMENDMENT/MODIFICATION

(Organized

by UCF

headings,

feasible)

Modification
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0010
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to

contract
~,.t-

J20802c-011
~~~ the official

serves
Notice

as

the
of

official
Termination

Termination
attached

for
to

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Attachment B

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CERTIFICATE OF FILING I hereby certify that on January 25, 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/ Meredyth D. Cohen