Free Order on Motion to Dismiss - Rule 41(a) - District Court of Federal Claims - federal

Case 1:04-cv-00473-MBH

Document 40

Filed 12/21/2004

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In the United States Court of Federal Claims
* * * * * * * * * * * * * * * * * M.G. CONSTRUCTION, INC., Plaintiff, v. UNITED STATES, Defendant. * * * * * * * * * * * * * * * * * ORDER The court is in receipt of the parties' November 23, 2004 joint status report, and the plaintiff's December 9, 2004 motion to dismiss those claims in the plaintiff's second amended complaint which require presentation to an agency contracting officer. As agreed by the parties, the claim described in paragraph 16 of the second count of the plaintiff's second amended complaint, as well as the claims in the third, fourth, fifth and sixth counts of the second amended complaint, are, hereby, DISMISSED, without prejudice, to permit compliance with the Contract Disputes Act. In the event the dismissed claims are not resolved at the agency level, and are brought by the plaintiff before this court, the clerk's office shall WAIVE the filing fee, ASSIGN a separate case number to the new complaint containing these claims, CONSOLIDATE the new case with the present case, with no. 04-473C being the lead case, and ASSIGN the new case to the undersigned judge. The plaintiff shall file monthly status reports on those claims dismissed for presentation to the agency contracting officer, with the first status report to be filed on or before Monday, January 10, 2005, and subsequent status reports filed on the tenth of each month until the claims are resolved or are filed in a new complaint with the court. Within ten days of the resolution of the claims or of the filing of a new complaint, plaintiff shall so advise the court in an individual status report. The court also is in receipt of the plaintiff's December 9, 2004 motion to file a third amended complaint, containing those claims which have been presented to the agency contracting officer, more specifically, counts one and two of the plaintiff's second amended complaint, minus the year 2004 claim at paragraph 16 of count two of the second amended complaint, which requires presentation to an agency contracting officer. The court, hereby, GRANTS the plaintiff's motion to file its third amended complaint. * * * * * * * * * * *

No. 04-473C Filed: December 21, 2004

Case 1:04-cv-00473-MBH

Document 40

Filed 12/21/2004

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The defendant filed a motion for an enlargement of time of sixty days, to and including February 25, 2005, within which to file a response to the plaintiff's third amended complaint. The court WAIVES the RCFC 15(a) requirement for a response to the amended pleading, rendering the defendant's motion for an enlargement of time MOOT. A premature motion for summary judgment on count one of the third amended complaint ("remove aggregate surfacing") was filed by the plaintiff on October 19, 2004. The parties shall consult and, on or before Friday, January 21, 2005, shall file a joint stipulation of facts with an appendix of supporting documents, setting forth specific stipulations of agreed upon facts with appropriate citations to the appendix to identify whether there are disputed material facts in the case. The parties also shall submit a joint statement of issues of law. For both submissions, the parties are to separately identify, if necessary, any statement of fact or issue of law which is not agreed upon by both parties, but which one party believes to be at issue in the case, in order to assist the parties and the court to determine whether the case is ripe for summary judgment or whether there are material facts in dispute which would preclude summary judgment. The joint stipulation of facts is to be filed in lieu of the moving party's proposed findings of uncontroverted fact and the opposing party's response to the proposed findings of uncontroverted fact, as provided in RCFC 56(h)(3).

IT IS SO ORDERED. s/Marian Blank Horn MARIAN BLANK HORN Judge

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