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

Case 1:05-cv-00370-CFL

Document 9

Filed 07/29/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ADRIAN RODRIGUEZ and ALI JAZMIN RODRIGUEZ, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-370C (Judge Lettow)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS Pursuant to Rule 56(h)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States hereby asserts that the following material facts are undisputed. "Def. App." refers to the appendix in support of our motion for summary judgment at which support for each factual assertion can be found. 1. On March 5, 2003, Ali Jazmin Rodriguez purchased a 1991 Volkswagen Passat

for $600 at an auction conducted upon behalf of the United States. Def. App. 3-4 (Compl. ¶¶ 814), 50, 61, 62. 2. The auction was conducted by McCormack Auction Company ("McCormack"), in

conjunction with EG&G Technical Services ("EG&G"). Def. App. 48. 3. The auction was advertised in a brochure published by EG&G. Under the heading

"terms and conditions," the brochure stated, among other things, that All merchandise is sold "As Is, Where Is" without warranty, or guarantee of any kind, stated, implied or otherwise. Please bid from your personal observations! Def. App. 48.

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4.

As a condition of participating in the March 5, 2003 auction, Mrs. Rodriguez

completed and signed an EG&G bidder registration form. Def. App. 45, 50. 5. The form stated, above Mrs. Rodriguez's signature, that "I agree to comply with

the terms of sale contained in the sale catalog for this sale and all future sales I attend." Def. App. 50. 6. The sales catalog for the March 5, 2003 auction stated: WARRANTY/GUARANTEE: All merchandise is sold on an "AS IS, WHERE IS" basis, without warranty or guarantee as to condition, fitness to use, or merchantability stated, implied or otherwise. Please bid from your own personal observations. Def. App. 51 (emphasis in original). 7. Def. App. 61. 8. Mrs. Rodriguez was required to present an invoice in order to pick up the vehicles Mrs. Rodriguez paid $600 for the vehicle, together with $200 for another car.

she purchased. Def. App. 46. 9. The invoice contained the following language at the bottom of the page: THANK YOU FOR ATTENDING TODAY'S AUCTION. PLEASE NOTE ALL MERCHANDISE SOLD ON AN "AS IS, WHERE IS" BASIS WITH NO WARRANTIES OR GUARANTEES AS TO CONDITION, FITNESS TO USE, OR MERCHANT[A]BILITY STATED OR IMPLIED. PLEASE BID FROM YOUR OWN PERSONAL OBSERVATION. ALSO, TOTAL INVOICE MUST BE PAID IN FULL BEFORE ANY PURCHASES MAY BE REMOVED. WE APPRECIATE YOUR BUSINESS AND YOUR COOPERATION. Def. App. 61.

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Respectfully submitted,

PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director s/Kathryn A. Bleecker KATHYRN A. BLEECKER Assistant Director Of Counsel: ERIK J. GANTZEL Office of Assistant Chief Counsel U.S. Customs & Border Protection 610 West Ash Street Suite 1200 San Diego, CA 92101 s/Andrew P. Averbach ANDREW P. AVERBACH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 353-0527 Fax: (202) 305-2118 Attorneys for Defendant

July 29, 2005

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