*1 an retained also noted that INSC court invalidity report and secured
expert 10, 2004, and therefore
early as November defenses known its relevant have
should 16(b) This the Rule order. before
long Coleman, situation resembles the ob- experts hired the movants
where year filing before report “over
tained judgment,” and were there- summary their com- leave to amend
fore denied all Considering F.3d at 1295.
plaints. 232 factors, the trial we conclude
these discretion. did not abuse its
Conclusion reasons, foregoing we reverse
For the new Defendants’ motion for denial of and Assadian’s individual
trial on Khatemi infringement, induce-
liability for direct
ment, contributory infringement. We mo- of Defendants’ reverse denial However, trial on
tion new mo- the denial of Defendants’
we affirm amend, and for leave
tions for JMOL proceedings. remand for further
REYERSED-IN-PART, AFFIRMED-
IN-PART, and REMANDED CARPENTRY,
M. MAROPAKIS
INC., Plaintiff-Appellant, STATES, Defendant-Appellee.
UNITED
No. 2009-5024. Appeals,
United States Court of Circuit.
Federal 17, 2010.
June *2 NEWMAN, LOURIE, and
Before LINN, Judges. Circuit *3 LINN, Judge. Circuit action under the Contract This arises (“CDA”), §§ 41 Disputes Act 601- (“Mar- Maropakis Carpentry, Inc. 613. M. opakis”) appeals the decision of the United dismissing of Federal Claims States Court subject for lack of Maropakis’s complaint to matter because failed present to the officer a “claim” meaning within the Maropakis CDA. appeals grant further counterclaim for ment’s dam- ages. Maropakis Because has demonstrat- clearly ed errors of law or no erroneous findings, factual we affirm.
Background 6, April Navy On a 1999 awarded for, among things, replacement of windows building roof at a at warehouse located Inventory Naval Control Point Mechan- M. icsburg, Pennsylvania. Inc. 84 Carpentry, v. United Fed. (2008). 182, specified The Cl. 185 16, 2000, January completion date later exten- though was modified 4, February sions 2000. The contract clause, liquidated damages also included a 52.211-12, of 48 C.F.R. the form provided which would per day liable to the for $650 Divittore, E. & Sinon Stephanie Rhoads day delay beyond for each the contract LLP, PA, Harrisburgh, argued for completion date. plaintiff-appellant. Of counsel on brief H. Kelly was Decker. begin until Maropakis did not work after project specified completion date. Kiffner, Attorney, Kent Trial Com- C. 17, 2001, days 467 completed May Branch, Division, Litigation mercial Civil completion after the modified date. On Justice, Department of United States 20, 2001, August Maropakis sent DC, argued for defendant- Washington, O.I.C., to “Mr. W.L. Robertson addressed him on brief were appellee. With requesting “an General, Navfac Contracts” exten- West, Tony Attorney Assistant January ... Davidson, Director, sion of contract time from and Donald Jeanne E. 2000 total of 447 con- Kinner, April Director. E. Assistant 1326 107-day al- days”
secutive calendar based on five extension the removal (1) days leged delays: due of lead contaminated windows. This letter manufacturer; inability to locate window multiple delays referred to but did not (2) days from start in time lost date days specify total number of of extension due of fabrication windows need stated, requested. letter then “we (3) days plans; to re-submit due dispute will ... (4) discovery paint; days lead-based $303,550.00 amount will indicate Navy’s prohibition due use of responsible that M. was not (5) adhesive; asphalt roofing as a added). delays.” (emphases *4 days searching for lost time while for a follow-up correspon- There was no to this August metal fabricator. Id. On Maropakis dence either not party. did 28, 2001, Nihoff, the contracting James separate file a regarding formal claim Officer”) on (“Contracting Maro- time extension. pakis’s responded August to the 20, Navy On December 2002 the issued by stating 20 letter that to Robertson Final Decision # 03-002F which reiterated Maropakis “present[] sufficient government’s for liquidated demand
justification to warrant time extension” damages. The characterizes requested. Contracting Id. The Officer this letter as a final decision pertaining rejected requested extensions, each for Navy’s liquidated demand noting that, among problems, some damages. Maropakis contends that this delay of the dates of overlapping. were letter was a final decision applying to each closing, Contracting Officer invited previous requests its extension Maropakis to “submit additional informa- period. the contract in support request tion” of its and stated letter is a Final Decision “[t]his activity There was no further by either Contracting Officer.” Id. at 192. party until Maropakis complaint filed on 17, December 2003 in 28, the Court of Federal 2002, Navy On June sent Maro- (1) letter, alleging Claims breach of pakis contract due pointing another out government delay Maropakis seeking resulting “responded had neither [to the (2) extensions, August 2001 time letter] with additional infor- breach of contract “requested mation” nor a Contracting government’s due to the Offi- assessment of cers final decision for [sic] these matters.” seeking remission The $303,550. letter also indicated that the gov- full Compl., Amended ¶¶ payments ernment had made 50-52, 54-55, M. Maropakis, 84 Fed.Cl. $244,036 $1,053,115, in the amount of less government responded by The as- $1,297,151. than the price total contract $59,514 serting a counterclaim for the bal- Finally, informed ance it was the government contended due it liquidated damages would owe in liquidated damages. On October $303,550 day representing per for the $650 2008, the Court of Federal granted Claims days in completing pro- motion to Maro- dismiss ject. Navy The applied this amount pakis’s claim for time extensions for lack of balance, the remaining contract subject-matter jurisdiction, finding that $244,036, resulting in a total due from had not submitted “claim” for $59,514. Maropakis of required contract modification as under Maropakis responded in a Federal July letter on CDA. Court of Claims 22, 2002 reiterating request granted its earlier motion but mentioning summary extension specifically judgment as its counterclaim Time II. Extensions issue. Maro- on the decisions, arguing that appeals both pakis case parties dispute letter was sufficient July its Maropakis submitted valid whether addi- the CDA. In a claim under constitute contracting to its offi for time extensions tion, argues that give sufficient to the Court Federal cer comply with required to jurisdiction over issue. Under assert prerequisites CDA, of Federal Claims has the Court for a time extension actions filed within twelve jurisdiction over liqui- counterclaim for officer’s decision months dated 609(a). § This claim. jurisdiction under 28 U.S.C. We have has found that thus re 1295(a)(3). both claim and a quires a valid decision on that
officer’s final Discussion M. James Ellett Constr. Co. (Fed.Cir. 1541-42 Standard of Review I. *5 1996). the CDA itself does not de Since novo the decision review de We “claim,” the term we look to the Fed fine dismiss the Court of Federal Claims to (FAR) Acquisition Regulations imple eral Corp. jurisdiction. lack of Radioshack menting for the definition. See the CDA (Fed. States, 1358, 566 1360 v. United F.3d Dalton, 1572, Reflectone, Inc. v. 60 F.3d Cir.2009). bears the burden plaintiff A (en banc). (Fed.Cir.1995) FAR 1575 subject-matter jurisdiction by establishing “a demand or defines “claim” as: written Reyn of the evidence. preponderance a by contracting assertion one of the written Serv., Exch. 846 Army v. & Air Force olds right, as a matter of parties seeking, (Fed.Cir.1988). 746, F.2d 748 certain, money a sum payment grant novo also review de We adjustment interpretation of contract or judgment by the summary Court terms, arising or relief or under Claims, justifiable factu “drawing Federal 48 relating to the contract.” C.F.R. party opposing in favor al inferences a not be 33.201. While CDA need judgment” stan reapplying and any particular form or use submitted applicable proceedings before the dard wording, “a any particular it must contain Island Long of Federal Claims. Court gives unequivocal clear and statement that States, Bank, 503 Savs. FSB United contracting adequate officer notice (Fed.Cir.2007). 1234, In the F.3d 1244 amount of the claim.” the basis and Con Claims, moving of Federal once the Court Maint., Cleaning Inc. v. tract United satisfy forward with evidence party comes (Fed.Cir.1997). States, 586, 811 F.2d 592 burden on a motion for sum ing initial a requires The CDA also that mary opposing judgment, party contracting to the officer claim indicate creating a present motion must evidence is requesting the contractor a final that Id. issue of material fact. genuine (“Besides Ellett, 93 decision. F.3d at particular permitted a Whether claim, meeting FAR of a law, definition question a under CDA also claims requires that all be sub de See Frazer v. which review novo. (Fed. States, contracting officer for a [fi mitted 288 F.3d decision.”). Cir.2002) “This require does reviews (holding nal] that “this court decision, request long a as including explicit final legal novo all determinations” de by its sub- tolling). what the contractor desires equitable the defense (inter final agree Maropak- missions is a decision.Id. Fed.Cl. We omitted). quotation nal marks These re July letter of is’s 2002 was suffi- quirements are of the CDA provide ad- cient to any appeal. England v. prerequisites equate notice the basis and amount of Swanson, (Fed.Cir. 1375, 1379 358 F.3d and therefore does not 2004). Thus, for the Federal satisfy the CDA. As noted the trial jurisdiction to have under court, specifically this letter mentioned CDA, proper must the contractor submit 107-day re- previously extension (1) claim—a written demand that includes quested. did The letter not state the adequate notice basis and amount of days requested total number of in exten- (2) request a claim for a final deci request sion final decision. addition, In sion. the contractor must fact, appears promise have received the officer’s final claim, forthcoming written which never Ellett, decision on that claim. at materialized. A claim cannot be based 1541 — 42. merely on intent to assert claim without
In its complaint, Maropakis alleged it any communication contractor of was entitled to because of various for a contracting desire officer decision. “delays, impacts disruptions” by Corp., See Transamerica Ins. Inc. v. Unit- government. Maropakis, M. 84 Fed.Cl. at (Fed.Cir. ed 184. The Court of Federal Claims found 1992), part by Reflectone, overruled in subject it lacked matter (holding F.3d 1572 quali- submissions *6 over this claim for time extension because fied as CDA claims when the contractor Maropakis require- had not the satisfied writing “asserted in and with sufficient ments of the CDA. The trial court thor- specificity right compensa- additional oughly analyzed each communication be- tion” and “the contractor communicated tween the government and his desire for a officer deci- them, found that none of either alone or in sion”); Mingus Constructors Inc. v. Unit- combination, contained a clear and un- (Fed.Cir. 1387, ed 812 F.2d 1394 equivocal qualify statement sufficient to as 1987) (finding that indicating letters a claim. Id. at 196-203. intent to file a claim in the future for an appeal, Maropakis
On argues that unspecified amount not were claims as de- July 22, of sufficient 2002 was by the fined contract where the contractu- Specifi constitute a claim under the CDA. al definition of claim substantially the cally, Maropakis argues that because the same as the FAR definition: “a written July 2002 product letter “was the of demand or parties assertion one of the continuing parties discussions between the seeking, a legal right, as the payment of concerning the assessment of liquidated money, adjustment or interpretation of damages Project delay, cause terms, relief, or other arising un- give letter was sufficient to contract”). relating or der to this adequate notice of Mar the basis of argues if even opakis’s Maropakis’s Principal claim.” Br. it compliance was not in technical with the at found, however, 20-21. trial CDA, best, the United States had actual knowl a generous “[a]t reading 22, 2002, edge of the amount July Maropak and basis of correspondence can inter preted Maropakis’s is’s claim and request for final therefore the Court Fed jurisdiction. However, decision on the liquidated eral Claims had damages assessment.” M. Maropakis, Maropakis provides 84 no evidence that
1329
provide
Contracting
not
on actual no- did
Officer
placed
was ever
days
of the total
adequate
of ex-
notice
number
specific
number
tice
extension,
actually requested in
it did
ultimately
days
would
tension
certain,
it
Instead,
state
Maropakis points to
sum
request.
request
dam-
a final decision. The
demand for
absence
request
to notice and the failure to
a final
and asserts that since
refers
ages
letter,
jurisdictional
impairments
July
gov-
decision were
2002
Ellett,
fully aware that
least the
for a
under
CDA.
ernment was
Moreover,
107-
at 1541-42.
while
assessed
F.3d
techni-
amount
compliance
in
cal
with certification
not a
day
dispute.
extension was
jurisdictional prerequisite
litigation
of a
assuming
govern
Even
CDA,
contractor’s claim under the
it is a
knowledge Maropakis’s
conten
ment’s
requirement to the maintenance
such an
in
along
way,
nothing
there is
tions
605(c)(6);
§
see
action.
U.S.C.
Shar-
compliance
that excuses contractor
man,
Here,
addition to
requirements.
CDA claim
explicit
with
above,
noted
defects
(requiring
that “[a]ll
See
Maropakis’s letter was not certified.
govern
claims
a contractor
Because
did
meet
relating to a contract shall be
ment
jurisdictional prerequisites
of a claim
writing,”
be submitted
the con
“shall
against the government for contract modi-
decision,”
tracting officer for
and “[f]or
CDA,
fication under the
the Court
Fed-
$100,000, the
of more than
contrac
claims
correctly
Maropak-
eral Claims
dismissed
claim”). Indeed,
certify
[ ]
tor shall
breach of contract
is’s
lack of
recognized
have
that the CDA a statute
jurisdiction.
waiving sovereign immunity.
Winter
FloorPro,
(Fed.
Inc.,
Liquidated Damages
III.
Cir.2009).
sovereign immuni
A “waiver of
Maropakis also claimed that
strictly
favor of
ty must be
construed
*7
government’s
damages
assessment of
was
States, 545
sovereign.”
v. United
Orff
in full.
improper
sought
its remission
596, 601-02,
2606, 162
125 S.Ct.
U.S.
made a motion for sum
(2005).
“must
L.Ed.2d 544
Such waiver
mary judgment on this claim and on its
expressed
statutory
unequivocally
be
for
corresponding counterclaim
the as
v.
implied.”
text and will not
Lane
liquidated damages. The
sessed
Court
Pena,
187, 192,
116
U.S.
S.Ct.
Federal Claims found that
omitted).
(1996) (citations
Maropakis Carpentry, question Inc. is not whether appeal Court of Federal Claims of could have or should have submitted grant gov- officer’s sort of some contract modifica- tion; delay damages, question ernment’s from is whether against by permitted that defending showing against to defend government caused and contribut- ment’s claim for ma- damages. The delay. my colleagues grant jority ed to the Thus cites the FAR’s inclusion of “the summary judgment government adjustment on ... contract terms” in the $303,550 delay damages, However, its claim for definition of “claim.” this defini- theory subject requires the court tion does not mean that FAR “lack[s] jurisdiction” government presented matter consider de- contract be fense that had raised with the before a modification contractor can Contracting government Officer. I do not share defend arising Indeed, “jurisdiction” performance. view that there is no from con- sider the defense to the did require Maro- claim, whereby pakis claim was summarily request to file a modifi- exist, disputed specified 1. It that the change specifica- ordered cessation of all work and did not refused to tions, proceed authorize to remove the time the windows were removed, paint days discovery lead until paint after custom and the lead made *10 paint Maropakis. by disputed performance It not the was entire time set in contract elapsed. when found that had windows to on GE submitted no claims the CO in for the order cation requests engine at the Maropakis’ various defects time of to consider however, time. performance Act, provides extensions for decision. simply denied requests were These may appeal that a contractor Govern- substance, to relating various reasons to appropriate ment claim board procedure. submitting without a claim its own to Thus, only jurisdiction the CO. over the juris- is within tribunal’s
When claim
Navy’s claims
at
under
contract are
diction,
government’s
like the
appeal.
in this
issue
routinely
tribunal
has
delay damages, the
to the
consider defenses
to
(citation omitted).
at 749
This hold-
any
by
This
is not negated
claim.
rule
ing
by
is contravened
the court’s decision
Act.
Disputes
provision
the Contract
today,
although jurisdiction
govern-
my colleagues
Yet
sustain the
delay
government’s
damages
monetary
and its sizable
ment’s CDA claim
requires
sep-
now
undisputed,
court
award,
imposing
permitting no
and
arate
basis for the contrac-
have been
stat-
negated
obstacles that
objection
government’s
to the
claim.
tor’s
my col-
precedent.
example,
For
ute and
Placeway
Corp. v.
Construction
United
required
hold that
leagues
was
(Fed.Cir.1990)
States,
“jurisdiction” sup- and is now Federal Claims court, contrary this
ported CDA, contrary prece-
purposes upon
dent, principles affront to the and an I re- were founded.3 courts
which these
spectfully dissent. INC., DESIGN, Tru
MICHAEL SIMON Arriviste), (Doing Business as Inc. Stores, Tar Target a Division of Plaintiffs-Appel Corporation,
get
lants, Defendant-Appellee. STATES,
UNITED
No. 2009-1571. Appeals, Court of
United States
Federal Circuit. 18, 2010.
June (Dec. 1861), Message en- duty First Annual of Government "It is as much itself, courthouse, prompt justice graved in favor render at the entrance to same, citizens, NW, it is to administer Washington, DC. Place Madison Lincoln, private A. individuals.” between