Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:05-cv-01205-MMS

Document 36

Filed 05/08/2007

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS NELSON CONSTRUCTION COMPANY, AND DONALD J. NELSON, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1205C (Judge Margaret M. Sweeney )

NOTICE OF ADDITIONAL AUTHORITY Defendant, the United States, respectfully provides additional authority relevant to the issue of parol evidence discussed in plaintiff's April 6, 2007 memorandum in opposition to our motion to dismiss count three of the amended complaint. Count three is premised upon a thirdparty beneficiary theory of recovery. The additional authority is the Court of Federal Claims decision in Rivera Agredano v. United States, --- Fed. Cl. ----, 2007 WL 1300766 (May 3, 2007). (Copy attached). In Rivera Agredano, the Court held that given that third-party beneficiary analysis begins with an examination of the contract itself, and only extends beyond the contract to parol evidence if a clear intent to benefit a third party is suggested but not expressly stated, the plaintiffs could not introduce parol statements in an attempt to interpret the meaning of the written contract. The Court noted that a party must prove third-party beneficiary status under a contract by demonstrating that the contract reflects the express or implied intention of the parties to benefit the third-party directly. The parol evidence rule provides that if a contract is integrated, barring certain limited exceptions, a party to a written contract cannot supplement or interpret that agreement with oral or parol statements that conflict with, supplant, or controvert the language of the written agreement itself.

Case 1:05-cv-01205-MMS

Document 36

Filed 05/08/2007

Page 2 of 2

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director s/ Leslie Cayer Ohta LESLIE CAYER OHTA Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 202-307-0252 202-307-0972 (Fax) May 8, 2007 Attorneys for Defendant