COMINT SYSTEMS CORPORATION AND EYEIT.COM, INC., JOINT VENTURE v. USA
Filing
100
PUBLISHED OPINION granting 99 Plaintiff NetServices' Motion for Leave to File a Second Amended Complaint. NetServices shall file its second amended complaint in accordance with the deadline to be set by the court in an order that adjudicates plaintiffs' second motions to supplement and resolves all issues concerning the contents of the administrative record. Signed by Judge Margaret M. Sweeney. (rac)
In the United States Court of Federal Claims
Nos. 11-400 C, 11-416 C
(CONSOLIDATED)
(Filed: August 8, 2011)
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JOINT VENTURE OF COMINT SYSTEMS
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CORPORATION AND EYEIT.COM, INC.,
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and NETSERVICES & ASSOCIATES, LLC,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant,
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and
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NETCENTRICS CORPORATION,
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DIGITAL MANAGEMENT, INC., and
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POWERTEK CORPORATION,
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Defendant-Intervenors.
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RCFC 15(a)(2); Motion for Leave to
File Second Amended Complaint;
Foman; Zenith Radio Corp.; Fala;
Centech Group, Inc.; Amendment
Freely Given When Justice Requires
Philip F. Hudock, Reston, VA, for Joint Venture of Comint Systems Corporation and EyeIT.com,
Inc. and David B. Dempsey and Jeffery M. Chiow, Washington, DC, for NetServices &
Associates, LLC, for plaintiffs.
Alexander V. Sverdlov and Steven Michael Mager, United States Department of Justice,
Washington, DC, for defendant.
Jeremy William Dutra, Washington, DC, for NetCentrics Corporation, David Phillip Metzger,
McLean, VA, for Digital Management, Inc., and Gerard Francis Doyle, Alexandria, VA, for
PowerTek Corporation, for defendant-intervenors.
RULING ON PLAINTIFF NETSERVICES & ASSOCIATES, LLC’S MOTION FOR
LEAVE TO FILE A SECOND AMENDED COMPLAINT
SWEENEY, Judge
Before the court is a request for leave to file a second amended complaint (“motion for
leave”) filed by plaintiff NetServices & Associates, LLC (“NetServices”). NetServices seeks
leave to file a second amended complaint for the purpose of incorporating information that it
discovered for the first time upon review of the second corrected administrative record, which
defendant filed on July 21, 2011.1 NetServices contends that the second corrected administrative
record provides further support, as well as additional grounds, for its postaward bid protest.
NetServices represents that, at the time of filing, neither defendant nor defendant-intervenors
consented to the motion for leave. The court, however, need not await responses from defendant
and defendant-intervenors. For the reasons set forth below, NetServices’ motion for leave is
granted.
I.
Rule 15 of the Rules of the United States Court of Federal Claims (“RCFC”) addresses
amended and supplemental pleadings. RCFC 15(a)(2) provides that the court “should freely give
leave [to amend] when justice so requires.” The decision to grant leave to amend rests within the
court’s discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 (1971);
Centech Group, Inc. v. United States, 78 Fed. Cl. 658, 659 (2007). In Foman v. Davis, the
United States Supreme Court (“Supreme Court”) explained that Rule 15(a) of the Federal Rules
of Civil Procedure (“FRCP”)
declares that leave to amend “shall be freely given when justice so requires”; this
mandate is to be heeded. If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be afforded an opportunity
to test his claim on the merits. In the absence of any apparent or declared
reason–such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.–the leave sought should, as the rules require, be “freely
given.”2
371 U.S. 178, 182 (1962) (footnote added). Although RCFC 15(a) provides that leave to amend
shall be freely given, “it is not to be abused.” Fala Corp. v. United States, 53 Fed. Cl. 35, 37
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NetServices further explains: “[T]he Government’s piecemeal presentation of the
[administrative record] prevented NetServices from seeing the information upon which the
amendments to its Complaint are based.” Mot. 2.
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“[T]o the extent permitted by this court’s jurisdiction,” the RCFC “shall be consistent
with the FRCP . . . .” RCFC 83(a). Interpretation of the RCFC “will be guided by case law and
the Advisory Committee Notes that accompany the [FRCP].” RCFC rules committee’s note
(2002); see also Zoltek Corp. v. United States, 71 Fed. Cl. 160, 167 (2006) (noting that
interpretation of the FRCP “informs the Court’s analysis” of the corresponding RCFC).
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(2002).
II.
Defendant filed the administrative record on June 28, 2011. One day later, it filed a
motion to correct the administrative record, which the court granted. After defendant filed the
corrected administrative record, NetServices and coplaintiff Joint Venture of Comint Systems
Corporation and EyeIT.com filed motions to compel supplementation of the record (“motions to
supplement”) and a joint supplemental motion to supplement the record (“joint supplemental
motion”) in which they argued that the corrected administrative record was incomplete. In its
July 15, 2011 ruling, the court granted in part and denied in part plaintiffs’ motions to
supplement, granted in part and denied in part as moot plaintiffs’ joint supplemental motion, and
directed defendant to file a second corrected administrative record. See Joint Venture of Comint
Sys. Corp. & EyeIT.com, Inc. v. United States (“Comint”), Nos. 11-400C, 11-416C, 2011 WL
3010681, at *10-11 (Fed. Cl. July 15, 2011).
Defendant filed a second corrected administrative record on July 21, 2011. One day later,
plaintiffs filed new motions to compel supplementation of the record (“second motions to
supplement”) on July 22, 2011, arguing that the second corrected administrative record was
incomplete and requesting supplementation with extra-record evidence. The court deferred
ruling upon plaintiffs’ second motions to supplement, see Order 1-2, July 27, 2011, and
scheduled a status conference with the parties to address all outstanding issues related to the
record in this case.
NetServices was previously unable to identify information upon which its proposed
amendment is based due to the “piecemeal presentation” of the administrative record. Mot. 2;
supra note 1. The court appreciates the task NetServices encountered. Indeed, many documents
contained within the second corrected administrative record are not organized chronologically or
are duplicated in several places. Documents are not labeled in a manner that immediately
identifies them or minimizes confusion, and the table of contents offers little aid. Consequently,
locating information contained in the second corrected administrative record can be both difficult
and laborious.
NetServices has not unreasonably delayed filing its motion for leave. Navigating through
over 16,000 pages of documents is a time-consuming endeavor that is only complicated by the
poorly assembled administrative record. More importantly, issues related to what materials are
or should be properly part of the administrative record remain outstanding, and the parties have
not yet filed dispositive motions.3 Defendant and defendant-intervenors, which have not yet
3
In opposition to plaintiffs’ motions to supplement, defendant and defendant-intervenor
Digital Management, Inc. (“DMI”) moved to dismiss portions of plaintiffs’ amended complaints
on timeliness grounds. The court denied as moot both motions to dismiss, explaining that the
motions were premature and permitting defendant and DMI to renew their motions at the
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responded to plaintiffs’ amended complaints, are not prejudiced by amendment, and none of the
circumstances identified by the Supreme Court in Foman that militate against granting leave to
amend is present in this case. Justice requires that NetServices have a full opportunity to set
forth the grounds for its protest, and there is no reason why NetServices should not be freely
given leave to file a second amended complaint. See Foman, 371 U.S. at 182; RCFC 15(a)(2).
III.
For the foregoing reasons, NetServices’ motion for leave is GRANTED. NetServices
shall file its second amended complaint in accordance with the deadline to be set by the court in
an order that adjudicates plaintiffs’ second motions to supplement and resolves all issues
concerning the contents of the administrative record.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
appropriate time. Comint, 2011 WL 3010681, at *10 & n.7.
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