Poong Lim/Pert Joint Venture Ex Rel v. Dick Pacific/Ghemm Joint Venture et al

Filing 252

Order on Motion for Summary Judgment

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA for
the use of POONG LIM/PERT
JOINT VENTURE,
Plaintiff,
vs.

DICK PACIFIC/GHEMM JOINT
VENTURE; CONTINENTAL
CASUALTY CO.; NATIONAL
FIRE INSURANCE CO. OF
HARTFORD; SEABOARD SURETY
CO.; and ST. PAUL FIRE AND
MARINE INSURANCE CO.,
Defendants.

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A03-290 CV (JWS)
ORDER FROM CHAMBERS
[Re:

Motion at Docket 148]

I. MOTION PRESENTED
At docket 148, Poong Lim/Pert Joint Venture (“Poong Lim”) moves for summary
judgment on the claim by Dick Pacific/Ghemm Joint Venture (“DPG”) for damages from
extended home office overhead. At docket 188, DPG opposes Poong Lim’s motion. At
docket 223, Poong Lim has filed a reply in support of its motion. DPG has requested
oral argument, but its request is denied because the parties’ briefs thoroughly address
the issues necessary to resolving Poong Lim’s motion and oral argument would not
further assist the court.

II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be
granted when there is no genuine dispute about material facts and when the moving
party is entitled to judgment as a matter of law. The moving party has the burden to
show that material facts are not genuinely disputed.1 To meet this burden, the moving
party must point out the lack of evidence supporting the nonmoving party’s claim, but
need not produce evidence negating that claim.2 Once the moving party meets its
burden, the nonmoving party must demonstrate that a genuine issue exists by
presenting evidence indicating that certain facts are so disputed that a fact-finder must
resolve the dispute at trial.3 The court must not assess the credibility of this evidence,
and must draw all justifiable inferences from it in favor of the nonmoving party.4
III. DISCUSSION
DPG calculates its damages from extended home office overhead according to
the so-called Eichleay formula, but it is not entitled to use that formula. A party seeking
to use that formula must show that 1) its work was delayed; 2) the delay extended either
the original time for performance or, if it expected to finish before then, an earlier time
for performance; and 3) it was “on standby and unable to take on other work during the
delay period.”5 DPG has not made the third showing. In fact, it alleges that it was able
to take on other work. That work may not have been what it “intended” or “planned” on

1

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

2

Id. at 325.

3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

4

Id. at 255.

5

Nicon, Inc. v. United States, 331 F.3d 878, 883 (Fed. Cir. 2003) (citations omitted and
emphasis added).

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doing,6 but that is irrelevant to determining whether it is entitled to use the Eichleay
formula.
IV. CONCLUSION
For the reasons set out above, the motion at docket 148 is GRANTED.
DATED at Anchorage, Alaska, this 8th day of February, 2006.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

6

Doc. 188, p. 28.

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