Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:02-cv-00737-EJD

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Filed 05/15/2003

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS RIVIERA FINANCE OF TEXAS, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 02-737C (Chief Judge Damich)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS Pursuant to Rule 56(d) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits Defendant's Proposed Findings of Uncontroverted Facts. 1. On February 2, 1999, the Defense Distribution Office ("DDC") issued contract No. SP3100-99-M-7045, an order for supply and services, to Optical Fiber Network Inc ("Optical Fiber"). The order was for the purchase of 27,500 feet of fiber optical cable. App. 1-3. 2. The order informed the contractor that invoices should be mailed to the Defense Finance and Accounting Service ("DFAS"). The order stated that the contractor's address and the mailing address were the same. App. 1-3. 3. In a letter dated February 17, 1999, Riviera Finance ("Riviera") notified DFAS and the contracting officer that Riviera was an assignee of the proceeds of the February 17, 1999 invoice. Riviera attached a notice of assignment to this letter stating that payment of the invoice should be made to Riviera. The attachment was purportedly signed by both representatives from Riviera and Optical Fiber. App. 5-7. 4. On March 19, 1999, Optical Fiber submitted invoice No. 7045, dated February 12,

Case 1:02-cv-00737-EJD

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Filed 05/15/2003

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1999, that stated that 28,500 feet of cable had been shipped. The invoice totaled $44,745. Optical Fiber's address was blacked out. App. 4. 5. On May 10, 1999, DFAS paid Optical Fiber $44,745. 6. In a letter dated February 23, 1999, Optical Fiber requested that DDC amend the contract "to show that the recipient of funds for services rendered be addressed to Riviera Finance." The letter stated that Riviera Finance was Optical Fiber's finance company and provided DDC its address. App. 8. 7. On February 26, 1999, the contracting officer modified the contract to change the remit address to Riviera Finance. App. 9 8. On July 1, 1999, Optical Fiber faxed a second invoice to DFAS, invoice No. 7045-b, for $1,982.91. DFAS made payment upon this invoice to Riviera. App. 10 9. Neither Riviera Finance nor Optical Fiber submitted the actual assignment instrument to the contracting officer or DFAS. 10. By letter dated April 23, 2002, Riviera submitted a claim to DFAS for $44,745. Riviera claimed that the proceeds of the contract had been assigned to Riviera. App. 12-15. On February 8, 2002, DFAS denied the claim. App. 11. 11. On June 26, 2002, Riviera initiated the present action.

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Case 1:02-cv-00737-EJD

Document 15

Filed 05/15/2003

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Respectfully submitted, ROBERT D. McCALLUM, JR. Assistant Attorney General DAVID M. COHEN Director s/ Mark A. Melnick by Bryant G. Snee MARK A. MELNICK Assistant Director s/ Thomas B. Fatouros OF COUNSEL: CYNTHIA CUMMINGS Senior Associate General Counsel Defense Finance and Accounting Service GA/CO Room B712 P.O. Box 182317 Columbus, OH 43218 THOMAS B. FATOUROS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Tel: (202) 307-5958 Fax: (202) 514-7965 Attorneys for Defendant

May 15, 2003

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