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

Case 1:05-cv-01205-MMS

Document 20

Filed 10/11/2006

Page 1 of 1

In the United States Court of Federal Claims
No. 05-1205C (Filed: October 11, 2006) ************************************* NELSON CONSTRUCTION COMPANY, * and DONALD J. NELSON, * * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * ************************************* ORDER The court heard oral argument today on defendant's motion to dismiss. During argument, plaintiffs' counsel raised theories of liability that were neither pled in the complaint nor discussed in plaintiffs' opposition to defendant's motion to dismiss. Although an insufficient excuse, plaintiffs' counsel claimed that he did not discover the precedent, which he claims is controlling, until last evening. Counsel's neglect disadvantaged government counsel and wasted the time and resources of this court and defendant. Nevertheless, the court recognizes the importance of plaintiffs having their day in court. Thus, the court will allow plaintiffs to file an amended complaint no later than November 1, 2006. Accordingly, defendant's motion to dismiss is denied without prejudice and with the right to renew.

IT IS SO ORDERED.

s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge