Free Motion in Limine - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-168C (Judge Allegra)

DEFENDANT'S MOTION IN LIMINE On September 3, 2004, the Court ordered that the parties file, by May 2, 2005, any in limine motions that raise issues of a substantive nature, i.e., issues that ordinarily would have been raised in a motion for summary judgment or partial motion therefore. Defendant, the United States, requests that the Court

exclude, from the trial scheduled to commence in these consolidated cases on August 15, 2005, evidence of certain issues of monetary damage raised by plaintiff, North Star Alaska Housing Corp. North Star has not raised those issues to the contracting

officer or, in the case of allegations that the Government has diminished the value of its business asset and increased its capitalization rate, those claims are for nonrecoverable consequential damages. In addition, we request that the Court

exclude evidence that North Star is entitled to particular incentive fee award amounts for the years 1999 and thereafter, because North Star does not allege that entitlement in its complaint in Case No. 02-1632C.

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In the first paragraph of its complaint in each of these consolidated cases, North Star invokes the Contract Disputes Act, 41 U.S.C. § 601, et seq., as the source of this Court's jurisdiction. When submitting a complaint to this Court pursuant

to the Contract Disputes Act, a contractor may not raise any new claims not presented and certified to the contracting officer. See Santa Fe Eng'rs, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987). The claim submitted to the contracting officer

must be one that "gives the contracting officer adequate notice of the basis and amount of the claim." See Contract Cleaning

Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987). If the contractor seeks monetary damages, the claim to

the contracting officer must have stated a sum-certain amount or an amount that can be easily determined by a simple mathematical equation or from the contractor's submission to the contracting officer in order for the Court to possess jurisdiction to entertain the claim for monetary damages. See Metric Constr. The

Co., Inc. v. United States, 14 Cl. Ct. 177, 179-80 (1988). Court should exclude evidence that North Star might offer to

support five allegations of monetary damage set forth in Case No. 98-168C, for failure to request additional compensation from the contracting officer. First, the Court should exclude evidence that North Star might offer to support the allegation of monetary damage set -2-

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forth in Count II.

In Count II, North Star challenges the

Government's position that the lease requires twice-weekly refuse collection, and seeks the "costs for the second weekly refuse pickup and disposal." Second Amended Complaint, Case No. 98-168C In its

("Second Am. Compl.") at 8 ¶¶ 27-28, 17-18 ¶ 2.

November 25, 1997 claim to the contracting officer respecting the frequency of refuse collection, however, North Star does not seek the cost of a second weekly refuse pickup and disposal, or any additional compensation. Appendix ("App.") 1.

Second, the Court should exclude evidence that North Star might offer to support the allegation of monetary damage set forth in conjunction with Count III. In Count III, North Star

challenges the Government's interpretation of the lease's "downtime" provisions, and requests that the Court "[d]eclare the rights and obligations of the parties with respect to turnaround time." Second Am. Compl. at 9-10 ¶¶ 32-34, 18 ¶ 3. North Star's

prayer for relief in Case No. 98-168 appears also to seek monetary damages relating to Count III. ¶ 5. Second Am. Compl. at 18

In its May 6, 1997 claim to the contracting officer

respecting downtime, however, North Star does not seek from the contracting officer any additional compensation related to downtime; it only demands "a Contracting Officer's decision with respect to the down time provisions of the Lease Agreement . . . ." App. 2-3. North Star reiterated its request for a downtime -3-

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decision in a November 25, 1997 submission to the contracting officer but, in that submission, did not request any compensation. App. 1.

Third, although the Court, in its October 4, 2004 order granting summary judgment upon Count IV of the second amended complaint in Case No. 98-168C, stated that it expected that the parties would attempt to resolve by stipulation the issue of monetary damage relating to carpet depreciation, the Court should exclude evidence that North Star might offer to support the allegation of monetary damage set forth in conjunction with Count IV. In Count IV, North Star challenges the Government's

application of a depreciation schedule to reimbursements for replacement items, specifically carpet, and seeks a declaration "with respect to its non-responsibility for these costs." Am. Compl. at 12 ¶¶ 41-42, 18 ¶ 4. Second

And North Star's prayer for

relief in Case No. 98-168 appears to seek monetary damages relating to Count IV. Id. at 18 ¶ 5. In its January 28, 1998

claim to the contracting officer respecting depreciation, however, North Star does not seek from the contracting officer any additional compensation. App. 4.

Fourth, the Court should exclude evidence that North Star might offer to support the allegation of monetary damage set forth in Count V. In Count V, North Star seeks unspecified

monetary damages from the Government's "post-settlement -4-

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agreement" conduct, apparently referring to a 1995 settlement agreement alleged in Count V of its complaint.1 Compl. at 12-13, ¶ 45, 18 ¶ 5. Second Amend.

In its second amended complaint,

however, North Star does not reference any claim submitted to the contracting officer for monetary damages arising from the "postsettlement agreement" conduct allegation set forth in Count V. Fifth, the Court should exclude evidence that North Star might offer to support the allegation of set forth in Count VII that it is entitled to a maximum incentive fee award for 1998. North Star alleges in Count VII that it is entitled to damages in the amount of five percent of the maintenance rent, plus interest, as an incentive fee award for 1998, and references a demand it made for a final contracting officer's decision upon the subject. Second Amend. Compl. at 17 ¶¶ 61-62. It also

requests that the Court declare that it is entitled to the maximum incentive fee award. Id. at 18 ¶ 7. In its March 29,

1999 claim to the contracting officer, however, North Star did not request a maximum incentive fee award for 1998; it requested that the contracting officer issue a final decision regarding an

Pending before the Court is our July 17, 2002 motion to dismiss Count V for lack of subject matter jurisdiction, to which North Star has not responded. Although the Court stayed Case No. 98-168C two days after we filed our motion, on March 13, 2003, the Court ordered a response to that motion by April 25, 2003. On April 3, 2003, the Court again stayed the case, but lifted that stay, in two parts, on May 5, 2004, and July 7, 2004. -5-

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incentive fee award for 1998, observing that the Army had not yet made a decision whether to grant such an award for that year. App. 5-6. On May 12, 1999, the Army awarded North Star an App. 7-8.

incentive fee for 1998, in the amount of $3,730.2

The Court should also exclude evidence that North Star might offer to demonstrate that it is entitled to specific incentive fee award amounts for the years 1999 and thereafter. In Case

No. 02-1632C, North Star alleges that the Government has failed to consider making incentive fee awards for 1999 "to the present." Case No. 02-1632C Compl. at 21-22 ¶¶ 78, 82. Id. ¶¶ 79-81. It also Unlike

challenges the bases for award decisions.

in Case No. 98-168, however, North Star does not allege entitlement to the maximum incentive fee award for those years, or request that the Court declare that it is entitled to maximum incentive fee awards for those years. Also with respect to the complaint in Case No. 02-1632C, the Court should exclude evidence that North Star might offer to support its allegations that the Government has diminished the value of its property. North Star alleges that the Government

has diminished the value of Birchwood Homes, its asset that is the subject of the lease at issue in this case. Case No. 02-

Our July 17, 2002 motion includes a request, to which North Star has also not responded, that the Court dismiss Count VII for lack of subject matter jurisdiction, including as moot. -6-

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1632C Compl. ¶¶ 4-5, 18, 19, 23, 26, 30, 32, 37, 47, 76, 83. North Star also alleges that the Government's conduct has increased its capitalization rate. Id. ¶ 5. Any diminution of

the value of Birchwood Homes or increase in North Star's capitalization rate, however, falls into the category of nonrecoverable consequential damage to North Star's business. Cf. William Green Constr. Co. v. United States, 201 Ct. Cl. 616, 477 F.2d 930 (1973) (holding that, in a breach of contract case, there would be no recovery for the claimed loss of the plaintiff company's entire net worth), cert. denied, 417 U.S. 909 (1974); United Med. Supply Co., Inc. v. United States, 63 Fed. Cl. 430, 440 (2005) (noting the rejection of claims that Government conduct under a contract led to the destruction of the contractor's business). Finally, the Court should exclude from trial evidence that North Star might offer to support the allegations of monetary damage set forth in Case No. 03-2699C, with the exception of the issue of reimbursement for the light fixture in Unit 1029 raised at page 8 of its complaint in that case. In its complaint, North Case

Star seeks damages in an amount to be determined at trial. No. 03-2699C Compl. at 17 ¶ 84, 19 ¶ A. In its claim to the

contracting officer for reimbursement for occupant damage to Unit 1029 (App. 12), North Star requested reimbursement of an amount that could easily be determined from its submission. -7-

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In none of its other claims underlying the allegations in Case No. 03-2699C, however, does North Star state a sum certain amount or an amount that can be easily determined. Rather, in

its claims regarding carpet replacement in Unit 884 (App. 9), interior painting in Unit 704 (App. 10), carpet and vinyl replacement in Units 833 (App. 11), corrections to vinyl in Units 1090 and 1111 (App. 13), vinyl replacement in Unit 633 (App. 14), list of repair costs (App. 15-16), authority to order disputed work (App. 17), gutter downspout repairs in Unit 638 (App. 18), repainting of Unit 961 and use of a black light to inspect painting (App. 19), countertop and carpet in Unit 961 (App. 2021), and cleaning of units (App. 22-23), North Star requests lease interpretation or a determination of unspecified financial responsibility for the issue it raises in the claim. The Court

should exclude, therefore, any evidence of monetary damage related to those issues. 80. For the foregoing reasons, the Court should grant our motion in limine. See Metric Constr., 14 Cl. Ct. at 179-

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

OF COUNSEL WILLIAM. M. EDWARDS Assistant District Counsel United States Army Corps of Engineers Alaska District

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 307-0361 Facsimile: (202) 514-7965 Attorneys for Defendant

April 18, 2005

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Certificate of Filing I hereby certify that on April 18, 2005, a copy of the foregoing Defendant's Motion In Limine 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. Parties may access this filing through the Court's system.

s/Timothy P. McIlmail