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

Filing 256

Order on Motion for Reconsideration

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 254]

I. MOTION PRESENTED
At docket 254, Dick Pacific/Ghemm Joint Venture (“DPG”) moves the court to
reconsider its order at docket 252. The court has not requested a response to DPG’s
motion.

II. DISCUSSION
DPG moves the court to reconsider its order on the grounds that the “the [c]ourt’s
reliance upon [Nicon, Inc. v. United States1] as precedent to completely bar DPG’s
extended home office overhead damages [was] inappropriate”2 and that the court
overlooked material facts.
A. The Law
DPG’s first argument is based on an incorrect reading of the order at docket 252.
That order addressed the motion for summary judgment on DPG’s “Eichleay claim for
extended home office overhead” filed by Poong Lim/Pert Joint Venture (“Poong Lim”).3
The court granted the motion and, in doing so, decided only that DPG was not entitled
to use the Eichleay formula to calculate the amount of its damages from extended home
office overhead. The court did not address the merits of DPG’s claim to those
damages. Consequently, it did not “completely bar” that claim. The claim is still alive to
the extent that it is meritorious and that any corresponding damages can be calculated
by methods other than the Eichleay formula.
B. The Facts
The court’s conclusion that DPG was not entitled to use the Eichleay formula
rested on its determination that DPG had not offered any evidence that it was “on
standby and unable to take on other work” during any delays. DPG contends that the
court overlooked paragraphs fifty-seven and sixty of R.M. Jens’s affidavit and appears
to argue that those paragraphs show that DPG was not able to take on other work.
In paragraph fifty-seven, Jens states that “DPG was effectively suspended from
completing its critical path work each time there was a delay to the project ..., [which]
resulted in indefinite delays to the project because DPG could not procede [sic] with its

1

331 F.3d 878 (Fed. Cir. 2003).

2

Doc. 255, p. 2.

3

Doc. 148, p. 1.

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planned critical path work.”4 This statement supports the fact that DPG could not do its
planned work, but it fails to create an issue about whether DPG could do other work.
In paragraph sixty, Jens declares that “DPG was not able to seek alternate
replacement work in the Fairbanks area due to the insidious, unpredictable nature of the
many small delays; the local economy; the inclimate [sic] winter weather and the fact
that DPG is a business headquartered in Hawaii.”5 This statement could be read as
suggesting that DPG was not able to take on other work but, notably, that is not how
DPG’s counsel reads it. In DPG’s opposition to Poong Lim’s motion, he cites it for the
proposition that “DPG was unable to perform other work efficiently due to inclimate [sic]
winter weather conditions.”6 And immediately after citing it in DPG’s motion for
reconsideration, he notes that despite delays, “the project itself continued on.”7 Taken
together, those constructions indicate that counsel’s understanding of Jens’s statement
was that DPG took on other work but could not perform it efficiently.
That understanding is consistent with the rest of Jens’s affidavit, in which he
declares that: 1) “DPG was forced to perform under winter weather conditions”;8
2) “DPG significantly mitigated its damages and prevented even further and much larger
damages to the project by resequencing the schedule for the project”;9 3) “DPG
prepared a resequenced schedule that still allowed for the overall completion of the
project within the contract time frame”;10 4) “[The alleged delays] forced certain aspects
of DPG’s work into winter weather ... [and] force[d] DPG to perform work under winter

4

Doc. 188, affidavit of R.M. Jens, p. 17, ¶ 57.

5

Id., Jens aff., p. 18, ¶ 60.

6

Id., p. 27.

7

Doc. 255, p. 5.

8

Doc. 188, Jens aff., p. 3, ¶ 10.

9

Id., Jens aff., p. 6, ¶ 22.

10

Id., Jens aff., p. 9, ¶ 32.

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weather conditions instead of during warmer weather as DPG had originally planned”;11
5) “In taking ... actions [to work in the winter], DPG was fulfilling its obligation to mitigate
potential damages instead of simply standing by.”12 These statements clearly suggest
that despite alleged delays, DPG never stopped working.
Considering DPG’s counsel takes Jens’s statement in paragraph sixty to mean
DPG was able to take on other work, and every other relevant statement in Jens’s
affidavit suggests the same thing, the court concludes that the statement does not
create a genuine issue about whether or not DPG was able to take on other work.
Besides arguing that the court overlooked facts indicating that it could not
perform other work, DPG also insists it did not have to offer those facts. It contends that
“[g]iven Alaska damage precedent, [being unable to take on other work] would not be a
mandatory requirement for recovery of home office overhead damages.”13 It also
asserts that such a requirement does not make sense in this case.
The first argument misses the point and the second will not be considered. The
first argument misses the point because the court’s order did not address recovery of
home office overhead. It only discussed calculating that overhead. The inability to take
on other work is relevant to that inquiry, regardless of what “Alaska damage precedent”
says about recovering overhead.
The second argument will not be considered because it is a legal argument that
was not raised in the briefing on Poong Lim’s motion. In that briefing, both parties cited
case law listing the inability to take on other work as a prerequisite to applying the
Eichleay formula. Neither party suggested this case’s facts justify ignoring that
requirement, and it is not proper procedure to raise that argument after the briefing has
been completed and the court has issued its order.

11

Id., Jens aff., p. 16, ¶ 53.

12

Id., Jens aff., pp. 16-17, ¶ 55.

13

Doc. 255, p. 4.

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III. CONCLUSION
For the reasons set out above, the motion at docket 254 is DENIED.
DATED at Anchorage, Alaska, this 22nd day of February, 2006.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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