NEVADA CONTROLS, LLC v. USA

Filing 26

UNREPORTED ORDER denying 18 Motion to Dismiss - Rule 12(b)(1) and (6). (Plaintiff's Amended Complaint due by 6/27/2014). Signed by Judge Elaine D. Kaplan. (cr) Copy to parties.

In the United States Court of Federal Claims
No. 12-843T
(Filed: April 29, 2014)

NEVADA CONTROLS, LLC,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.

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Motion to dismiss; RCFC 12(b)(6);
Amended Complaint; Limited Discovery

Bryan D. Dixon, Bryan D. Dixon, Attorney at Law, PLLC, Henderson, NV, for
plaintiff
Michael J. Ronickher, U.S. Department of Justice – Tax Division, Washington,
DC, for defendant
ORDER GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT,
DENYING DEFENDANT’S MOTION TO DISMISS AS MOOT, AND SETTING A
SCHEDULE FOR LIMITED DISCOVERY
This case is before the Court on the motion of the defendant, the United States of
America (hereinafter “the government”), to dismiss for failure to state a claim upon which relief
can be granted under the Rules of the Court of Federal Claims (“RCFC”) 12(b)(6). The plaintiff,
Nevada Controls, LLC, a Nevada corporation, alleges that the Secretary of the Treasury
erroneously denied its claim for four grants under section 1603 of the American Recovery and
Reinvestment Tax Act of 2009 (“ARRTA”), Pub. L. No. 111-5 (2009), as amended by section
707 of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,
Pub. L. No. 111-312 (2010). Nevada Controls seeks $553,716 in ARRTA grants, and $40,000 in

damages to compensate it for loan penalties and interest it allegedly incurred as a result of the
government’s failure to award the grants.
The government argues that Nevada Controls’ complaint must be dismissed because it
fails to allege facts showing compliance with the application deadline set forth in section 1603(j)
of ARRTA, which prohibits the Secretary of the Treasury from “mak[ing] any grant to any
person under this section unless the application of such person for such grant is received before
October 1, 2012.” In addition, the government argues that the Court does not have jurisdiction
over Nevada Controls’ claim for consequential damages resulting from the nonpayment of the
grant.
Oral argument was held on the motion to dismiss by phone on April 29, 2014. During
the oral argument, counsel for plaintiff clarified the allegations in its complaint regarding its
compliance with the statutory deadline. He indicated that Nevada Controls believed that it had
timely submitted specific requests for grants for the projects at issue in this case through
communications with the Secretary of the Treasury’s online applications system (to which
plaintiff no longer has access). In light of that clarification, the Court will GRANT plaintiff
leave to file a second amended complaint as requested in its opposition to the government’s
renewed motion to dismiss at 5, and DENY the government’s motion to dismiss as moot.
The plaintiff shall file its amended complaint by June 27, 2014. In addition, the parties
shall complete discovery regarding the contents of the online communications between plaintiffs
and the Secretary of the Treasury within sixty days of the date of this Order. Thereafter, within
thirty days of completing discovery, the parties shall submit a joint (or, if necessary separate)
proposed scheduling order to govern further proceedings in the case.

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IT IS SO ORDERED.
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s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge

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