Globex Corp. v. United States

54 Fed. Cl. 343, 2002 U.S. Claims LEXIS 308, 2002 WL 31505712
CourtUnited States Court of Federal Claims
DecidedNovember 8, 2002
DocketNo. 00-320C
StatusPublished
Cited by8 cases

This text of 54 Fed. Cl. 343 (Globex Corp. 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
Globex Corp. v. United States, 54 Fed. Cl. 343, 2002 U.S. Claims LEXIS 308, 2002 WL 31505712 (uscfc 2002).

Opinion

OPINION

YOCK, Senior Judge.

This case is before the Court on the Defendant’s Motion to Dismiss for Lack of Jurisdiction (the “Motion to Dismiss”), pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). As explained below, the plaintiff has failed to show, by a preponderance of the evidence, [345]*345that this Court has subject matter jurisdiction over its claim. Accordingly, the defendant’s motion is granted, and the Complaint is to be dismissed.

Background

The Sandia Corporation (“Sandia”) entered into a contract with the Department of Energy (the “DOE,” or the “Government”), effective October 1, 1993, pursuant to which Sandia managed and operated the Government-owned Sandia National Laboratories (the “Prime Contract”). On June 22, 1995, Globex Corporation (the “plaintiff’) entered into a contract with Sandia, pursuant to which the plaintiff was to provide crane and hoist inspection and preventive maintenance for an initial contract term of two years (the “Globex Contract”).1

On December 21, 1995, Sandia terminated the Globex Contract for convenience. In accordance with the termination clause in the Globex Contract, the plaintiff submitted a settlement proposal seeking $386,974.15. According to the plaintiff, a settlement was tentatively agreed upon, but the settlement was expressly contingent upon Sandia obtaining the Government’s approval. Apparently, the Government did not approve the settlement agreement.

On March 17, 1999, the plaintiff filed a complaint against the Government in the United States District Court for the District of Columbia (the “District Court”). The District Court, determining that exclusive jurisdiction over the subject matter of the complaint lies in the United States Court of Federal Claims (the “Court of Federal Claims”), transferred the case to this Court.

The plaintiff filed his Complaint in this Court on June 28, 2000, alleging that the plaintiff had “received a contract from Sandia” (Compl.¶ 4) but that the Government is “ultimately responsible and liable” under the Globex Contract. (Compl.¶ 17.) The plaintiff seeks the full amount of its original settlement proposal, $386,974.15, plus additional “settlement expenses” of $551,361.15.

On October 17, 2000, the Government filed its Motion to Dismiss, contending that there is no privity of contract between the plaintiff and the Government and thus no basis for this Court to exercise subject matter jurisdiction over the plaintiffs claim. In response, the plaintiff filed “Plaintiffs Opposition to Defendant’s Motion to Dismiss” (the “Plaintiffs Original Response”), in which it asserted that the plaintiff has privity of contract with the Government because Sandia acted as an agent of the Government. In that filing, the plaintiff also cited an unpublished opinion of the United States Court of Appeals for the Federal Circuit (the “Federal Circuit”) for the proposition that the plaintiff must be given an opportunity to develop jurisdictional facts relating to its ease. The plaintiff requested “that the Court construe liberally the rules permitting any amendment of complaint to conform to this Opposition to Defendant’s Motion To Dismiss” (Pl.’s Original Resp. at 2) and also requested the opportunity to conduct discovery. Id. at 2-3.

Because the plaintiff relied upon an agency, or “deemed privity,” theory to invoke this Court’s jurisdiction, a theory that had not been pled in the Complaint, this Court issued an Order on February 9, 2001, instructing the plaintiff to amend the Plaintiffs Original Response to cite relevant provisions of the Prime Contract that supported such jurisdiction, in accordance with the leading “deemed privity” cases decided by the Federal Circuit. The Government provided a copy of the Prime Contract to the plaintiffs counsel for this purpose.

On March 22, 2001, the plaintiff filed “Plaintiffs Supplemental Motion to Respond to Defendant’s Motion to Dismiss” (the “Sup[346]*346plement to the Plaintiffs Original Response”). In that filing, the plaintiff cited three provisions of the Globex Contract but did not cite any provisions of the Prime Contract to support its “deemed privity” argument. The plaintiffs filing concluded that the “[pjlaintiff rests on its earlier response to Defendant’s Motion to Dismiss.”

This Court issued an Order on July 27, 2001, granting the plaintiff leave to amend its Complaint to plead its “deemed privity” theory, as the plaintiff had requested in the Plaintiffs Original Response. The Order once again directed that, if the plaintiff elected to file an amended Complaint, the plaintiff was to cite relevant provisions of the Prime Contract in support of its “deemed privity” theory, consistent with leading “deemed privity” cases. On December 20, 2001, however, the plaintiff filed a one-page status report informing the Court that it would not be filing an amended Complaint. The filing concluded that “our position has been succinctly set forth in the filings to date and there exist [sic] privity under the circumstances of this case.”

On February 28, 2002, this Court denied the Motion to Dismiss without prejudice to renewal, ruling that the jurisdictional facts in the ease had not been developed enough to determine whether or not this Court could exercise jurisdiction over the plaintiffs claim. The Court granted the parties three months of discovery in order to develop further relevant jurisdictional facts. On May 31, 2002, the plaintiff requested three additional months of discovery, which was granted by this Court, notwithstanding opposition by the defendant.

On September 9, 2002, the plaintiff filed “Plaintiffs Supplemental Comments With Respect to Additional Briefing” (the “Discovery Status Report”). In that one-page filing, the plaintiff reported that it “is unable to offer any additional factual evidence, and stands by its comments submitted previously with respect to its opposition to the Government’s motion.” The defendant thereafter renewed the Motion to Dismiss, and the plaintiff responded with its “Corrected Opposition to Defendant’s Motion to Dismiss” (the “Plaintiffs Second Response”). Oral argument was not requested and is deemed unnecessary.

Discussion

I. Standard of Review

In assessing the Motion to Dismiss, this Court accepts as true all undisputed allegations of fact asserted by the plaintiff and construes all reasonable inferences in the plaintiffs favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). However, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

When subject matter jurisdiction is challenged by the defendant in a motion to dismiss, the burden is on the plaintiff to establish subject matter jurisdiction by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct.

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Bluebook (online)
54 Fed. Cl. 343, 2002 U.S. Claims LEXIS 308, 2002 WL 31505712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/globex-corp-v-united-states-uscfc-2002.