CARTER v. USA, No. 1:2016cv01115 - Document 7 (Fed. Cl. 2016)
Court Description: UNREPORTED OPINION and ORDER granting 5 Motion to Dismiss - Rule 12(b)(6). The Clerk is directed to enter judgment. Signed by Judge Charles F. Lettow. (dls) Copy to parties. (Plaintiff served via certified mail; Article No. 7014 1200 0000 9093 9942)
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CARTER v. USA Doc. 7 ()RIG!ilIAl" lJn tbt @nitr! $tutts [,ourt of fr[erul @lsimg No. 16-1ll5C (Filed: December 8, 201 6) (NOT TO BE PUBLISHED) :* * *'* * DEC *'t * * * * * * * * * * * * * * *,* * * * * :* * * * :*,1. * CLIFTENA CARTER, Plaintiff, v. - 8 2016 U.S. COURT OF ) ) ) ) ) FEDERAL CLAIMS ) ) UNITED STATES, ) Defendant. ** * *+* *** FILED * * *,* * *** ** *** *'f ,t **** * *r* * ) ) ) Cliftena Carter, pro se, Fayetteville, Tennessee. Renee A. Burbank, Trial Attomey, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attomey General, Civil Division, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. OPINION AND ORDER LETTOW, Judge. PlaintiffCliftena Carter brings suit on behalf of Carter Safety Consultants, Inc. (,,CSCI',), the company for which she serves as president and CEO. CSCI had a contract with the United States Army Corps of Engineers ("Corps ofEngineers" or "Corps") to perform project scheduling support services. The total estimated cost of the contract was $619,144.40, and in March 2013 the Corps paid CSCI $509,601.80, based on the value ofthe total work performed. Ms. Carter alleges that CSCI is owed $109,542.60, the difference between the amount paid to CSCI for services rendered and the service estimates provided in the contract. Pending before the court is the govemment's motion to dismiss pursuant to Rules 41(b), 83.1(a(3), and 12(b)(6) ofthe Rules of the Court ofFederal Claims ("RCFC"). ?01q 1a00 Il0B0 5033 55qe Dockets.Justia.com BACKGROUND Plaintiff is the president and CEO of CSCI, an "Economically Disadvantaged WomenOwned Small Business." Compl. at I . In 2007, the Corps of Engineers awarded a three-year service contract to CSCI under Section 8(a) ofthe Small Business Act to provide "information and project scheduling support." Compl. Tab 3 (Contracting Officer's Final Decision (Apr.21, 2016)) at 1; see also Compl. Tab 4(3) (Contract No. W912P8-07-D-0050).r After the expiration ofthe original contract in September 2010, the Corps awarded CSCI follow-on contract for the continued provision ofthe same services. Compl. Tab 3, at 5; see a/so Compl. Tab 4(2) (Contract No. W912P8- 10-P-0255). CSCI provided estimated costs for the second contract, which were accepted by the Corps as estimates and incorporated into the contract. Compl. Tab 3, at2-5; Compl. Tab 4(2), at3-4. The estimates were provided on an hourly basis, in accord with the indefinite-delivery/indefinite-quantity nature ofthe original contract. See, e.g., Compl. Tab 3, at 3. Inthe final conffact, the Corps of Engineers "mistakenly" included the term "If]irm-fixed [p]rice" rather than "indefinite delivery/indefinite quantity" or an equivalent term, and used the term "!]ump [s]um" rather than "[h]ours" for the unit of payment for each contract line-item. Compl. Tab 3, at 5; Compl. Tab 4(2), at3. Nonetheless, the contract incorporated by reference provisions ofthe Federal Acquisition Regulations ('FAR') that apply to indefinite-delivery/indefinite-quantity contracts and made no reference to regulations regarding firm-fixed-price contracts. See Compl. Tab 3, at 5-8; Compl. Tab 4(2), at I 5- 1 6 (incorporating 48 C.F.R. g 52.216-22). CSCI was also required to submit invoices and timesheets to the corps during the course of contract performance, a requirement with which CSCI complied. Compl. Tab 3, at 11. a During contract performance, CSCI and the Corps issued four bilateral modifications of the contract. compl. Tab 3, at 9-11. Each modification included updated estimated costs. Compl. Tab 3, at 9-l Inthe final modification, which extended contract performance through Mtrch27,2013, the estimated cost of contracr performance was $619,144.40. Compl. Tab 3, at l. At the conclusion of contract performance, cscl submitted a final invoice to the corps of Engineers, stating that "[c]umulative [b]illings" under the contract totaled $509,601 .90. Compl. Tab 3, at 12, The Corps processed payment to CSCI in this amount on May 6,2013. Compl. Tab 3, at 12; see also Compl. Tab 4(8) (Contractor's Release (May 3, 2013)). When the Corps contacted CSCI in December 2013 to formally close out the contract, Ms. Carter (on behalfofCSC! responded with a request for "final payment" measured by the difference between the estimated costs in the contract and cSCI's cumulative billings, amounting to $ 1 09,542.60. Compl. Tab 3, at 12-13. CSCI maintained this request in multiple communications with the corps throughout 2014, but did not provide any documentation to show that additional services had been rendered for the claimed amount. see, e.g, compl. Tab 3, at 13-16; Compl. Tab 9 (Request Againsr Contracr No. W9l2P8- l0-p-0255 For Equirable Adjustment (Nov. 12, 2014)); Compl. Tab 10 (Request Against Contract No. W9l2pg-10-p0255 For Equ[it]able Adjustment (Aug. 11,2014)). rAn extensive set ofexhibits filed with the complaint were designated by tabs. a On February 8, 2016, CSCI submitted to the Corps a request for a Contracting Officer's Final Decision. See Compl. Tab 4 (Request for Final Payment, Contract No. W9l2P8-10-P0255 (Feb.8,2016)). In this request, CSCI asserted that it was owed the difference between the estimated costs in the contract and the costs ultimately billed because the contract was a frrmfixed-priceilump-sum contract. Compl. Tab 3, at 16-17. The contracting officer issued her decision on April 21,2016. Compl. Tab 3. She determined that the mere mention of "[flirm [f]ixed [p]rice" on one page of the contract was insufficient to render it a firm-fixed-price/lumpsum contract. Compl. Tab 3, at 17. In her view, the full text ofthe contract, the course of dealing between CSCI and the Corps, and the circumstances surrounding the contract showed that it was an indefinite-delivery/indefinite-quantity contract. Compl. Tab 3,ar17-20. The contracting officer concluded that the Corps was thus only obligated to pay CSCI for the services it actually rendered and billed, regardless of the fact that the cost ofservices ultimately performed was less than the estimated cost stated in the contract. Compl. Tab 3, at 21. Therefore, the contracting officer denied CSCI's claim. Compl. Tab 3, at22. Following the Contracting Officer's Final Decision, Ms. Carter filed suit in this court on September 6, 2016.2 In her complaint, she reasserts CSCI's prior contention that the contract with the Corps was a firm-fixed-price/lump-sum contract and thus that the company is owed the difference between the cost of services rendered and the estimated cost stated in the contract. See generally Compl. ANALYSIS RCFC 83.1(a)(3) states that "[a]n individual who is not an attorney may represent oneself or a member of one's immediate family, but may not represent a corporation, an entity, or any other person in any proceeding before this court." Thus, apro se plaintiff cannot represent a corporation; a corporation must be represented by an attomey to proceed in this court. This,,has been the law [of the federal courts] for the better part of two centuries ." Rowland v. California Men's Colony, Unit II Men's Advisory Council,506 U.S. 194,201-02 (1993) (citing Osbornv. Bank o/ United States,22U.S. (9 Wheat.) 738,829 (1824). And.,[t]he court is not free to waive this rule, even in cases ofsevere financial hardship." Talasila, Inc. v. Ilnited states,240 F.3d 1064, 1066 (Fed. Cir. 2001) (intemal quotation marks and citations omitted); see also schickler v. united states,54 Fed. cl. 264,267-68 (2002) ("There are no exceprions to rhis clear and unqualified rule.") (quoting Talasila,240 F .3d at 1067), appeal dismissed, T0 Fed. Appx. 584 (Fed. Cir.2003). Ifa corporation does not obtain counsel, "the ordinary remedy is to dismiss [the] complaint for lack of prose cution." Balbach v. united states, 1 19 Fed. cl. 681 , 683 2On April 20,2016, the day before the issuance of the Contracting Officer,s Final Decision, Ms. carter submined a letter to Senator Bob corker requesting assistance with her complaints against the corps. see compl. Tab 2 (Letter from cliftena carter to Sen. Bob corker (Apr. 20, 2016)). This letter was forwarded to the corps of Engineers on Ms. carter's behalf. A representative of the corps responded to senator corker's office on June 2,2016, explaining that CSCI had been paid $509,601.80 for services rendered and that the company was not entitled to additional payments based solely on the estimated costs in the contract. compl. Tab 1 (Letter from Laura J. Eichhom, Principal Assistant Responsible for Contracting - Atlanta, U.S. Army Corps of Engineers to Sen. Bob Corker (June 2, 2016)). (2015) (citing Alli v. United States, 93 Fed. Cl. 172, 177 (2010), appeal dismissed, 447 Fed. Appx. 223 (Fed. Cir. 201 1)). Although Ms. Carter is listed as the plaintiff in this case, the real plaintiff-in-interest is CSCI. This suit was filed to recover payments allegedly owed to CSCI based on a contract between the Corps of Engineers and CSCI. Ms, Carter is not a party to this contract in hel individual capacity, see Compl. Tab a(2), at 1, so she cannot sue the government on the contract as an individual. See Erickson Air Crane Co. v. United States,73l F 2d 810,813 (Fed. Cir. 1984) ("The govemment consents to be sued only by those with whom it has privity of contract.") (citing united States v. Johnson Controls, lnc.,713 F.2d 1541, i550-52 (Fed. Cir. 1983)). Ms. Carter also is not an attomey, and therefore cannot represent CSCI pursuant to RCFC 83. 1(aX3), even though she is the president and CEO of the corporation. See Balbach, 119 Fed. Cl. at 683 (dismissing apro se suit brought by the owner-operator ofa corporation regarding a contract between the corporation and the federal govemment); Affourtit v. United States,79 Fed. Cl. 776, 779-80 (2008) (same). Consequently, without a notice of appearance filed in this case by an attomey admitted to practice before this court, plaintiff s complaint must be dismissed for lack of prosecution pursuant to RCFC 41(b). See Ogunniyi v. United States, 124 Fed. Cl. 525, 530 (2015) ("To the extent that [plaintiffs] complaint is a veiled attempt to allow him to argue on behalfof [his company] and seek essentially a second appeal or review of the contracting officer's decision against [the company] under RCFC 83.1(a)(3), absent a notice of appearance filed by an attomey admitted to this court, -plaintiff s complaint must be dismissed."), alf'd,655 Fed. Appx. 842 (Fed. Cir.2016).r CONCLUSION For the reasons stated, the govemment's motion to dismiss Ms. Carter's complaint rs enter judgment in accord with this disposition. GRANTED. The clerk shall No costs. It is so ORDERED. Charles F. Lettow Judge 3Additionally, on November 21,2016, the court issued an order to show cause why the case ought not to be dismissed because plaintiffhad neither paid the filing fee nor frled a motion to proceed inJbrma pauperis. Plaintiffdid not respond to this order and has failed to pay the filing fee. Thus, the complaint is also dismissed on this basis pursuant to RCFC 4l (b) and 77 .l(c\.
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