Free Response to Motion - District Court of Federal Claims - federal

Case 1:04-cv-00632-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS INFORMATION SYSTEMS AND NETWORKS CORPORATION Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 04-632C (Judge Bush)

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR DISMISSAL WITHOUT PREJUDICE Pursuant to RCFC 41(a)(2), defendant, the United States, respectfully requests the Court to deny the motion to dismiss the complaint without prejudice filed by plaintiff, Information Systems And Networks Corporation ("Info Systems"), on September 17, 2004. A dismissal without prejudice is not in the interests

of justice or judicial economy. In its motion, Info Systems suggests that it needs to amend its complaint because "its Complaint inadvertently conradicts the theory contained in the certified claim." (emphasis added).1 Pl. Motion, at 1

This statement has no obvious meaning.

However, assuming for the sake of argument that the statement means something, Info Systems should simply seek leave to amend its complaint, and so permit these proceedings to move forward expeditiously to a conclusion.

"Pl. Motion" refers to "Plaintiff's motion for voluntary dismissal without prejudice, or alternatively, consent motion for enlargement of time to file the opposition to defendant's motion for summary judgment," filed September 17, 2004.

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The interests of justice and judicial economy support an expeditious resolution of this case. The Court, and counsel for

the United States, have already invested time and effort to review the allegations in the complaint, and to gather relevant evidence. Info Systems should not be granted leave to initiate a

new suit, with a new judge and new counsel for the United States, and thereby cause our investment of time and effort to be lost. Furthermore, the interests of justice and judicial economy are particularly strong in this case because record evidence already before the Court demonstrates that Info Systems has no valid claim related to the contract identified in the complaint. In such circumstances, there is no reason to prolong the litigation process. As we demonstrated in connection with our motion for summary judgment, Info Systems gave the United States a complete release from any claim related to the contract: 7. On April 14, 2003, Info Systems executed a settlement agreement with the United States. Ag. In part, the settlement agreement read: This modification is issued to provide payment to the Contractor, Information Systems Network Corp. (ISN) after full and complete negotiations concluded on 21 March 2003 and decision of ASBCA Case # 46119, for the amount of $1,664,879.00 including both entitlement and quantum and have also decided to settle, for now and for all times, any and all claims and any other matters arising under or related to subject contract. By -2Af-

8.

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signing the SF30, the Contractor, ISN, agrees to full settlement of claims as described in this paragraph. Ag. Def. PFUF, at 2 (emphasis added).2 In short, no matter how Info

Systems might amend its complaint, and no matter how Info Systems might fashion its allegations regarding the contract in a new complaint, the newly-worded contract claim will still be subject to the same broad release set forth above. It is difficult to perceive any reasonable basis for the complaint filed by Info Systems, and it is difficult to resist the conclusion that the time invested in this case by the Court and by counsel for the United States has been spent upon an obviously meritless claim. However, if Info Systems has any

revised contract claim that Info Systems can put forth in good faith, then Info Systems should promptly present that claim to this Court in an amended complaint. At that point, we are likely

to renew our motion for summary judgment, and it is likely that this case can be resolved with little additional use of resources by the Court and by counsel for the United States. For the reasons stated above, we respectfully request that the Court deny the motion to dismiss the complaint without prejudice.

"Def. PFUF" refers to "Defendant's proposed findings of uncontroverted fact," filed June 29, 2004. -3-

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director S/ Franklin E. White, Jr. FRANKLIN E. WHITE, JR. Assistant Director S/ James W. Poirier JAMES W. POIRIER Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L St, N.W Washington, D.C. 20530 Tele: 202-307-6289 Fax: 202-514-7969 September 20, 2004 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on September 20, 2004, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR DISMISSAL WITHOUT PREJUDICE" was filed electronically. I

understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. may access this filing through the Court's system. S/ James W. Poirier Parties