Barren Island Marina, Inc. v. United States

44 Fed. Cl. 252, 1999 WL 493964
CourtUnited States Court of Federal Claims
DecidedJuly 9, 1999
DocketNo. 96-570 C
StatusPublished
Cited by7 cases

This text of 44 Fed. Cl. 252 (Barren Island Marina, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barren Island Marina, Inc. v. United States, 44 Fed. Cl. 252, 1999 WL 493964 (uscfc 1999).

Opinion

OPINION and ORDER

TURNER, Judge.

This case, arising from a marina concession contract with the National Park Service, was initiated in May 1995 in the United States District Court for the Eastern District [254]*254of New York and was transferred to this court in May 1996. Thereupon, plaintiff filed, on October 10, 1996, an amended complaint asserting claims in six counts.

This opinion addresses defendant’s motion filed on July 30, 1997 to dismiss three counts of the amended complaint for lack of subject-matter jurisdiction and for summary judgment on the remaining three counts. We conclude that to the extent defendant seeks to dismiss three counts for lack of jurisdiction, the motion must be denied, but we further conclude that defendant is entitled to summary judgment with respect to all counts of the amended complaint.1

I

The following is undisputed. Barren Island Marina, Inc., a New York corporation, executed a contract with the National Park Service (NPS) to construct and operate a marina in the Jamaica Bay Unit of the Gateway National Recreation Area in Brooklyn, New York. Amend.Compl, ¶¶5, 6. The term of the contract was for ten years commencing January 1, 1979. Id., ¶ 6. The contract was informally extended until March 31,1995. Id., ¶ 12.

While performing under the contract, plaintiff, through its president and sole shareholder, Theodore A. Prakopé, knowingly submitted false financial reports to NPS and bribed a NPS deputy director. Def. Prop.Find. of Fact, ¶¶ 5-12; Pl.Stat. of Genuine Issues, ¶¶ 5-12. In April 1995, defendant assumed control of the marina and hired a temporary operator. Amend.Compl., ¶ 17.

The six counts in plaintiffs amended complaint contain the following assertions:

1. In the first count, plaintiff says that defendant failed to compensate plaintiff for the fair value of its improvements at the marina as required by the contract and, further, prevented it from “negotiating] with a successor concessioner for the value of its compensable interests in the marina.” Id., ¶¶ 24, 26-31.
2. In the second count, plaintiff asserts that defendant failed to submit to arbitration, as required by the contract, to determine the fair value of plaintiff’s property. Id., ¶ 38.
3. In the third count, plaintiff asserts that defendant failed to obtain its consent when it hired a “temporary operator” and, subsequently, failed to compensate it for the use of its property by the temporary operator as is required by the contract. Id., ¶¶ 40-45.
4. In the fourth count, plaintiff asserts that defendant breached its duty to maintain the marina and plaintiff’s personal property. Id., ¶¶ 46-49.
5. The fifth count asserts that defendant failed to compensate plaintiff for monies defendant received on delinquent accounts. Id., ¶¶ 50-52.
6. In a sixth count, plaintiff asserts that Defendant’s breach of the Concession Contract, and its refusal to issue [a] Statement of Requirements for a new concession contract, or to pay Plaintiff for its compensable interests at the marina, for the use of its personal property at the marina, for the wasting of its assets, or for the money Defendant received on Plaintiff’s behalf, has led to the destruction of Plaintiff as an ongoing business concern, and the loss of its credit and financial viability____Wherefore, Plaintiff seeks damages ... plus interest ... on this claim for relief.
Id., ¶¶ 53-54. (Although asserted as a separate, sixth count and designated a “claim for relief,” we believe that this sixth count is, more precisely, a prayer for consequential damages rather than a separate ground for relief.)

Defendant answered the amended complaint and filed a special plea in fraud on January 8,1997. (Defendant filed, on March 5, 1998, an amended answer, counter-claim and a renewed special plea in fraud.) The case currently stands on defendant’s motion to dismiss filed on July 30,1997.

[255]*255II

Defendant argues that because plaintiff, through its president and sole shareholder, knowingly submitted false financial reports to NPS and bribed a NPS deputy director, plaintiffs first, second and third counts should be forfeited pursuant to 28 U.S.C. § 2514. Def.Mot. (7/30/97) at 10-16. These counts are addressed in Part III below concerning defendant’s plea in fraud.

Defendant further argues that plaintiffs other claims should be dismissed for lack of subject-matter jurisdiction because the fourth and sixth counts sound in tort and the fifth count is based upon an implied-in-law contract. Id. at 6-9.

In its fourth claim for relief, plaintiff alleges that defendant failed to maintain and protect plaintiffs property at the marina after plaintiff was terminated as concessioner. Amend.Compl., ¶¶ 46-49. In its sixth claim, plaintiff alleges that the government’s breach “led to the destruction of Plaintiff as an ongoing business entity, and the loss of its credit and financial viability.” Id., ¶ 53. Defendant asserts that this court does not have subject-matter jurisdiction to adjudicate these claims because they are claims for waste which sounds in tort. Def.Mot. (7/30/97) at 6-8. Plaintiff alleges in its fifth claim for relief that defendant received payment on delinquent accounts “which were due and owing to Plaintiff.” Amend.Compl. (10/10/96), ¶ 50. Defendant argues that this court lacks subject-matter jurisdiction over count five because the claim for “money had and received” is based upon an implied-in-law contract. Def.Mot. (7/30/97) at 8-9.

Plaintiff eounter-argues that these claims are within this court’s jurisdiction because they are based upon the Fifth Amendment of the United States Constitution, the National Park System Concessions Policy Act (CPA), 16 U.S.C. §§ 20 - 20g, and its Concession Contract with the government. We agree that we have jurisdiction over counts four, five and six.

While assertions of waste may sound in tort, the claims in counts four and six are grounded in the contract-in-suit just as are the claims in counts one, two and three and, consequently, fall within our subject-matter jurisdiction. Similarly, we conclude that, in the context of this case, count five asserts a claim grounded on the Concession Contract and is not intended to be a stand-alone claim based on an unrelated implied-in-law contract. Consequently, we also have subject-matter jurisdiction over count five.

Ill

The pivotal issue presented by defendant’s motion for partial summary judgment is whether plaintiff can maintain any claim against the government arising out of or relating to its contract with NPS in light of the forfeiture provisions of 28 U.S.C. § 2514, which provides:

A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof.

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Cite This Page — Counsel Stack

Bluebook (online)
44 Fed. Cl. 252, 1999 WL 493964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barren-island-marina-inc-v-united-states-uscfc-1999.