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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________)

TETRA TECH EC, INC.,

Fed. Cl. No. 06-146C (Judge Wheeler)

PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND CORRECT TYPOGRAPHICAL ERROR

I.

INTRODUCTION Plaintiff Tetra Tech EC, Inc. ("Tetra Tech"), by its counsel, pursuant to Rule 15(a) ­ (d)

of the Rules of the United States Court of Federal Claims (RCFC), respectfully requests leave to file the accompanying, proposed Amended Complaint, which includes correcting a typographical error in Tetra Tech's original prayer for relief. This Amended Complaint adds alternative bases for calculating the amount of recovery sought by Tetra Tech and increases the amount based on information revealed in documents produced by the Government and the testimony of Government witnesses designated to provide evidence in response to the Notice issued by Tetra Tech pursuant to RCFC 30(b)(6). As discussed below, granting Tetra Tech's motion would not prejudice the Defendant and would require no further discovery, above and beyond the discovery permitted though April 30, 2007 as set forth in Defendant's Unopposed Motion for Extension of Time, granted by the

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Court's Order dated March 26, 2007. Further, granting the motion will not otherwise complicate this case or delay the trial. The changes in Tetra Tech's Amended Complaint are the addition of Subparagraphs A.H. of Paragraph 28, Count VI, the correction of a typographical error in the amount set forth in Tetra Tech's initial prayer for relief, and a prayer for relief in the alternative based on Count VI. No other changes are proposed.

II.

ARGUMENT IN SUPPORT OF MOTION TO AMEND In the absence of "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 of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be `freely given'." Intrepid v. Pollock, 907 F.2d 1125 (Fed. Cir. 1990)(quoting Forman v. Davis, 371 U.S. 178 (1962)). That the moving party did not have sufficient information to make the allegations currently at issue at the time of filing the original complaint is not a ground for refusing to allow an amended or supplemental complaint. Id. The proposed Amended Complaint sets forth additional, alternative, methods for calculating Plaintiff's damages based on: (a) adopting the weighted formula methodology used by the Government to calculate the amount set forth in the final decision from which Tetra Tech appealed; (b) correcting the weighted formula to apply the proper scope of Modification 03 to Task Order 006; and

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(c) correcting the weighted formula for the proper scope of the Modification 03 and for additional UXO/UXO-like items that are undisputed. The propriety of the alternative methods of calculating plaintiff's damages has been generally admitted by witnesses designated by the Government in response to a Notice of Deposition issued by Tetra Tech pursuant to RCFC 30(b)(6). Because the alternative method of calculating the amount of Tetra Tech's entitlement adopts the methodology used by the Government (albeit with corrections), no additional discovery is necessary since the Government is the author of the methodology upon which the formula is constructed and is the source of the underlying information relied on by the Plaintiff for the additional allegations in its Amended Complaint. Tetra Tech has not been dilatory in seeking to amend its complaint. On December 8, 2006, the Government produced its estimate and calculation of the $341,482 for which the Contracting Officer found entitlement in her final decision. The spreadsheets setting forth the estimate and calculation for the amount in the final decision make an unspecified reference to Modification 03. The spreadsheets did not provide Tetra Tech with sufficient information to fully understand the basis of the amount set forth in the final decision, how it was calculated, or the extent of the Government's reliance on Modification 03 in calculating the entitlement amount set forth the final decision. Following the Court's issuance of a Protective Order, Tetra Tech conducted an on-site document review at USAESH on January 22 and 23, 2007. During this document review, Tetra Tech designated for coping and production the Government's working file for Modification 03. The copies were received by Tetra Tech on January 30, 2007. This working file contained the

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USAESH's spreadsheets reflecting the basis for the Contracting Officer's finding that Tetra Tech was entitled to recover $341,482 on its Claim. On January 22, 2007, Tetra Tech served on the Government a Notice of Deposition pursuant to RCFC 30(b)(6), which included Exhibit A, setting forth the subjects about which the Government was required to designate persons to testify. Exhibit A also included as Attachment 1 the spreadsheets for the Government estimate, weighted formula and calculation used for the amount of the final decision. Under Plaintiff's 30(b)(6) Notice, the Government was required to designate someone to provide testimony on, among others, the "complete factual bases for any Government estimates or projections of costs, anomalies and/or UXOs and UXO-like items prepared by the Government in connection with the Tetra Tech's Requests for Equitable Adjustment and Claim, including without limitation the spreadsheet attached [thereto] as Attachment 1." On February 7, 2007, the Government designated its project manager under the Task Order, Brendan Slater, to testify regarding the estimate and calculation for the amount in the final decision. The Government made Mr. Slater available for deposition on February 13, 2007. Mr. Slater's testimony as well as the testimony of the Government Rule 30(b)(6) witnesses, provides the factual and legal basis for Tetra Tech's amended complaint. Further, in a draft joint status report that Tetra Tech's counsel sent to counsel for Defendant on April 3, 2007, Tetra Tech's counsel set forth the intention to amend Tetra Tech's complaint consistent with this motion and the accompanying proposed Amended Complaint. In regards to the proposed amending of the complaint, Tetra Tech's counsel stated "[n]either party anticipates that additional discovery will be required that cannot be completed in accordance with the Court's March 26, 2007 Docket Report Order." Counsel for Defendant was unable to

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obtain approval for the joint status report before the April 4, 2007 filing deadline. However, counsel for Defendant did advise Tetra Tech's counsel by email on April 4, 2007 that "the defendant concurs in the facts and representations," which included the above-quoted statement that no further discovery would be necessary beyond April 30, 2007. This is Tetra Tech's first motion for leave to amend. It is not motivated by bad faith or dilatory motive.

III.

CORRECTION OF TYPOGRAPHICAL ERROR The prayer for relief in Tetra Tech's Complaint contained a typographical error for the

amount demanded. As filed, the amount states "$1,118,422.62," whereas it should have read "$1,188.422.62," which is the amount of Tetra Tech's certified claim, the amount upon which the Contracting Officer's final decision is based, and the amount set forth in the "Amount Claimed" on Plaintiff's Civil Cover Sheet filed with the Court. In the proposed Amended Complaint accompanying this motion, the amount now reads as follows: $1,188,422.62. WHEREFORE, Plaintiff Tetra Tech EC, Inc. respectfully requests that its motion for leave to file Amended Complaint be granted and that the Court direct the Clerk of the Court to file the attached proposed Amended Complaint. TETRA TECH EC, INC.

Date: April 13, 2007

By:

__s/ William W. Thompson , Jr.______________ William W. Thompson, Jr. Robert D. Banfield PECKAR, ABRAMSON, BASTIANELLI & KELLEY, LLP 1133 21st Street, N.W., Suite 500 Washington, D.C. 20036 (202) 293-8815 Telephone (202) 293-7794 Facsimile

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Attachments (2) · · Proposed Amended Complaint Proposed Order

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of April 2007, a copy of the foregoing PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND CORRECT TYPOGRAPHICAL ERROR, with proposed AMENDED COMPLAINT and proposed ORDER, was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ William W. Thompson, Jr.

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