KELLOGG BROWN & ROOT SERVICES, INC. v. USA

Filing 27

ORDER denying 23 Motion to Strike ; finding as moot 15 Motion to Dismiss - Rule 12(b)(1) and (6) Signed by Judge Victor J. Wolski. (jd) Copy to parties.

In the United States Court of Federal Claims
No. 13-236C
(Filed May 2, 2013)
NOT FOR PUBLICATION
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KELLOGG BROWN & ROOT
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SERVICES, INC.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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ORDER
In this pre-award bid protest, plaintiff filed its First Amended Complaint on
April 25, 2013 --- twenty-one days after filing and serving the initial complaint, and
six days after the government filed a motion to dismiss. The government moves to
strike the First Amended Complaint, arguing that the expedited briefing schedule
contained in the Scheduling Order of April 5, 2013, displaced Rule 15(a)(1)(A) of the
Rules of the United States Court of Federal Claims (“RCFC”)--- which normally
permits the filing of an amended complaint within 21 days of the filing of the initial
complaint. Def.’s Mot. to Strike at 2. Defendant contends that allowing such an
amendment is particularly inappropriate in the context of a bid protest, as bid
protests are generally handled on an expedited basis. Id. The government
maintains that is prejudiced by the amendment, having already filed a motion to
dismiss of some length. Id. at 3.
Opposing the motion, plaintiff observes that our court’s rules clearly permit
amendments “as a matter of course” within 21 days of the filing of a complaint. Pl.’s
Opp’n at 1 (quoting RCFC 15(a)(1)). Plaintiff also notes that, rather than
precluding the amending of complaints following the filing of a motion to dismiss,
the court’s rules expressly allow such amendments. Id. at 3 (citing RCFC
15(a)(1)(B)). Additionally, plaintiff argues that there was nothing in the April 5,
2013 order to suggest that RCFC 15(a)(1) was superseded by the adoption of a
breifing schedule. Id.

The court agrees with plaintiff. Nothing in our court’s rules or the case law
suggests that the normal rule permitting amendments of pleadings is suspended
when an expedited briefing schedule is adopted for a bid protest. Although the
Court did not anticipate the filing of an amended complaint when it adopted the
briefing schedule, it also did not intend to displace the normal rules governing
amendments. Neither the need for an accelerated schedule nor the fact that a
motion to dismiss has been filed can be said to prejudice defendant in any
meaningful way. Defendant has offered no support for its contention that RCFC
15(a)(1)(A) should be disregarded in this case. The motion to strike is DENIED.
The filing of the amended complaint containing new allegations does,
however, necessitate an adjustment to the briefing schedule. Defendant suggests
that the best way to resolve this is to extend its time for filing a reply in support of
its motion to dismiss by five days, and allow it to raise new issues in that filing.
Def.’s Mot. to Strike at 1, 3-4. After carefully considering the matter, the Court
concludes that a better approach would be to give the government one week from
the date of this order in which to file a revised motion to dismiss, addressing the
First Amended Complaint. Thus, the Court adopts the following expedited
schedule:
1. The government shall file its revised motion to dismiss on or by
Thursday, May 9, 2013;
2. plaintiff shall file its opposition on or by Thursday, May 16, 2013;
3. the government shall file its reply by Thursday, May 23, 2013; and
4. the hearing on defendant’s motion to dismiss will be held at 1:30 p.m.
EDT Thursday, May 30, 2013. The hearing will take place by
telephone, and chambers will initiate the call to counsel for each party.
The parties are encouraged to contact chambers if the need to adjust the
above schedule arises. The Court would be willing to accelerate the schedule if the
parties so desire. The government’s motion to dismiss is moot and, accordingly is
DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge

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