Morse Diesel International, Inc. v. United States

69 Fed. Cl. 558, 2006 U.S. Claims LEXIS 31
CourtUnited States Court of Federal Claims
DecidedFebruary 1, 2006
DocketNos. 99-279C, 99-529C, 99-530C, 00-531C, 03-1537C
StatusPublished
Cited by4 cases

This text of 69 Fed. Cl. 558 (Morse Diesel International, 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
Morse Diesel International, Inc. v. United States, 69 Fed. Cl. 558, 2006 U.S. Claims LEXIS 31 (uscfc 2006).

Opinion

MEMORANDUM OPINION AND ORDER REGARDING THE GOVERNMENT’S SEPTEMBER 6, 2005 MOTION TO TRANSFER AND CONSOLIDATE AND PLAINTIFF’S JANUARY 9, 2006 MOTION FOR DISCOVERY

BRADEN, Judge.

RELEVANT FACTUAL BACKGROUND

A complete statement of the factual background relevant to this Memorandum Opinion is set forth in Morse Diesel Int’l, Inc. v. United States, 66 Fed.Cl. 788, 789-93 (Fed. C1.2005) (“Morse Diesel F). In brief, Morse Diesel International, Inc. (“MDI”)1 is a construction management firm that contracted for work on three United States federal buildings that are now the subject of lawsuits filed in the United States Court of Federal Claims and the General Services Board of Contracting Appeals (“GSBCA”). For reasons discussed herein, the court has determined, pursuant to 41 U.S.C. § 609(d), that the nine actions pending before the GSBCA should be transferred to the United States Court of Federal Claims for adjudication and entry of a Final Judgment.

A. The St. Louis Phase I And Phase II Contracts.

On July 15, 1994, the General Services Administration (“GSA”) awarded MDI Contract No. GS06P94GYC0037 (“Phase I of the St. Louis Contract”), requiring MDI to excavate a building site and construct a foundation and core wall for the Thomas F. Ea-gleton Federal Courthouse in St. Louis, Missouri. See Morse Diesel I, 66 Fed.Cl. at 791. Phase I of the St. Louis Contract had a fixed price of $20,343,186.00. Id. On September 29, 1995, GSA awarded MDI another Contract No. GS06P95GZC0501 (“Phase II of the St. Louis Contract”), requiring MDI to complete the construction of the Thomas F. Eagleton Federal Courthouse. Id. Phase II of the St. Louis Contract had a fixed price of $165,102,792.00 and an option [560]*560for a build-out with a separate price of $1,900,000.00. Id.

B. The San Francisco And Sacramento Contracts.

On February 15, 1995, GSA awarded MDI Contract No. GS09P95KTC0010 to conduct seismic and electrical upgrades at the United States Customs House in San Francisco for a fixed price of $12,220,188.00 (“San Francisco Contract”). Id. at 792.

On July 19, 1995, GSA also awarded MDI Contract No. GS09P95KTC0032 to construct the core and shell of the United States Courthouse and Federal Building in Sacramento for a fixed price of $92,609,000.00 (“Sacramento Contract”). Id.

PROCEDURAL HISTORY

A. In The United States Court Of Federal Claims.

On May 5, 1999, MDI filed a Complaint in the United States Court of Federal Claims, Case No. 99-279C, alleging a breach of Phase II of the St. Louis Contract. Id. at 793. On July 29, 1999, MDI also filed Case No. 99-529C in the United States Court of Federal Claims seeking a declaratory judgment and conversion of the default termination of Phase II of the St. Louis Contract to a termination of convenience. Morse Diesel Int’l, Inc. v. United States, 66 Fed.Cl. 801, 803 n. 1 (Fed.C1.2005) (“Morse Diesel II”). On July 29, 1999, MDI filed Case No. 99-530C in the United States Court of Federal Claims seeking reimbursement of certain costs arising from Phase II of the St. Louis Contract. Id. On September 1, 2000, MDI filed Case No. 00-531C in the United States Court of Federal Claims seeking reimbursement of certain costs arising from Phase II of the St. Louis Contract. Id. On June 20, 2003, MDI filed Case No. 03-1537C seeking review of a GSA contracting officer’s denial of a claim arising from Phase II of the St. Louis Contract. Id. On July 18, 2003, each of the aforementioned related cases were consolidated with the Case No. 99-279C. See Morse Diesel I, 66 Fed.Cl. at 794-95.

On February 20, 2004, the court heard oral argument on all pending dispositive motions. On July 15, 2005, the court issued a Memorandum Opinion granting the Government’s December 7, 2001 Motion for Partial Summary Judgment Regarding the Seventh Counterclaim against MDI for violating Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58. See Morse Diesel I, 66 Fed.Cl. at 801. The court has not yet adjudicated the other bases for the Government’s April 29, 2003 Motion for Partial Summary Judgment.

On July 15, 2005, the court also issued a Memorandum Opinion and Order transferring GSBCA No. 16503 to the United States Court of Federal Claims. See Morse Diesel II, 66 Fed.Cl. at 806.2 On July 26, 2005, the GSBCA issued an Order dismissing GSBCA No. 16503, without prejudice, and transferring the case to the United States Court of Federal Claims, pursuant to the July 15, 2005 Order in Morse Diesel II.

On August 16, 2005, the Government filed a Fourth Amended Counterclaim against MDI/AMEC in Case No. 99-279C, as consolidated to date, wherein nine counterclaims were asserted alleging violations of: the False Claims Act, 31 U.S.C. § 3729(a)(1), (a)(2); the Forfeiture of Fraudulent Claims Act, 28 U.S.C. § 2514; the Anti-Kickback Act of 1986, 41 U.S.C. §§ 53, 55(a)(1)(A) and (B);3 and the Contract Disputes Act, 41 U.S.C. § 604. See 4th Amend. Countercl. ¶MORSE DIESEL INTERNATIONAL, INC. 131-175. The Government also alleged common law counterclaims for: restitution; payment under mistake of fact; breach of [561]*561contract; and fraud. Id. The Government’s counterclaims, however, are not limited only to Phase II of the St. Louis Contract, but also concern MDI’s conduct on Phase I of the St. Louis Contract, as well as the Sacramento and San Francisco Contracts. Id.

On September 9, 2005, the Government filed a Motion to Transfer and Consolidate the nine remaining actions still pending before the GSBCA concerning claims arising from Phase I and Phase II of the St. Louis Contract, together with an Appendix (“Gov’t App.”). On September 20, 2005, MDI/ AMEC filed a Response opposing transfer and consolidation (“Pl.Resp.”). Although MDI/AMEC does not oppose the transfer of three GSBCA actions involving Phase II of the St. Louis Contract, however, MDI/ AMEC opposes the transfer of the six GSBCA actions concerning claims arising from Phase I of the St. Louis Contract. See Pl. Resp. at 1. MDI/AMEC’s opposition to the transfer of the actions concerning claims arising from Phase I of the St. Louis Contract essentially replicates MDI/AMEC’s pri- or opposition to the transfer of GSBCA No. 16503. Compare id. with Morse Diesel II. Specifically, MDI/AMEC argues that the United States Court of Federal Claims does not have jurisdiction to transfer the Phase I of the St. Louis Contract actions, because a “suit” does not include counterclaim, within the meaning of 41 U.S.C. § 609(d). Therefore, the jurisdictional prerequisite for transfer of “two or more suits arising from one contract” is not satisfied.

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69 Fed. Cl. 558, 2006 U.S. Claims LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-diesel-international-inc-v-united-states-uscfc-2006.