Sunbelt Rentals, Inc v. United States of America
Filing
25
MEMORANDUM DECISION AND ORDER Defendant's Motion to Dismiss (Dkt. 19 ) is GRANTED. The hearing set for 10/31/18, is VACATED, and the Court will issue a separate judgment dismissing the complaint without prejudice. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SUNBELT RENTALS, INC.,
Plaintiff,
v.
Case No. 1:17-cv-00325-CWD
MEMORANDUM
ORDER
DECISION
AND
UNITED STATES OF AMERICA,
Defendant.
INTRODUCTION
Before the Court is Defendant’s motion to dismiss. Defendant contends that,
although styled as a tort claim, Plaintiff’s claim is based upon and relates to a
procurement contract with the United States, the exclusive remedy for which is the
Contract Disputes Act. According to the United States, the Act provides a comprehensive
statutory scheme and does not confer jurisdiction upon the Court. The parties filed
responsive briefing, and it is now ripe for the Court’s consideration. Having fully
reviewed the record herein, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
MEMORANDUM DECISION AND ORDER - 1
delay, and because the Court conclusively finds that the decisional process would not be
significantly aided by oral argument, the motion will be decided on the record before this
Court and the hearing set for October 31, 2018, will be vacated. Dist. Idaho L. Rule
7.1(d). For the reasons that follow, the Court finds it lacks jurisdiction and will grant
Defendant’s motion to dismiss.
BACKGROUND 1
On or about September 12, 2016, the Bureau of Reclamation rented a manlift from
Sunbelt. Compl. ¶¶ 11-12, ECF No. 1. Plaintiff alleges that “[o]n or about September 16,
2016 at approximately 3:00 P.M., Bureau of Reclamation employees were transporting
the Equipment,” when “the trailer, which was carrying the Equipment tipped over.” Id. ¶¶
13, 16. Plaintiff later submitted a tort claim in the amount of $133,089.00 to the Bureau
of Reclamation “to recover losses, per the terms of the Rental Agreement between”
Plaintiff and the Bureau of Reclamation. Compl. ¶ 9; Decl. of Matthew C. Watts, Ex. A. 2
Both parties acknowledge that an express agreement for the rental of the Equipment was
reached. Compl. ¶ 11 (the Bureau of Reclamation “rented” the Equipment); Ans. ¶ 11
(admitting the allegations in ¶ 11 of the Complaint.) The Office of the Solicitor for the
United States Department of the Interior denied Sunbelt’s claim on behalf of the Bureau
1
as true.
The facts are taken from the Complaint, and for the purposes of the motion to dismiss, are taken
Ex. A to the Declaration of Matthew Watts is the tort claim Plaintiff submitted to the Bureau of
Reclamation. The notice references Sunbelt Rental Contract No. 63253478-001.
2
(Continued)
MEMORANDUM DECISION AND ORDER - 2
of Reclamation on February 28, 2017. Compl. ¶ 9. Plaintiff filed the Complaint alleging a
tort under the Federal Tort Claims Act. (Compl., Dkt. 1.) 3
The United States moves to dismiss Plaintiff’s tort claim for lack of jurisdiction,
arguing that because Plaintiff’s claim is based upon and relates to a procurement contract
with the United States, the exclusive remedy is under the Contract Disputes Act. The
United States’ motion is predicated on a challenge to jurisdiction as a factual matter.
Plaintiff disagrees, arguing that it has asserted a negligence claim against the United
States, and its claim is not a contract claim disguised as a tort claim. Plaintiff contends
this action is properly brought as a tort claim, and therefore the Court has jurisdiction
under the Federal Tort Claims Act.
DISPOSITION
1.
Standard of Review
The United States contends the Court lacks subject matter jurisdiction as a factual
matter under Fed. Rule Civ. P. 12(b)(1) and 12(b)(3). A motion to dismiss for lack of
After Plaintiff filed its Complaint, the Government attempted to reach a settlement of the claim.
(England Decl. ¶ 2.) The parties agreed upon an amount, but did not agree on other terms. (Id.) The
Government then determined that, because Plaintiff’s claim related to a procurement contract, it was
justiciable only under the Contract Disputes Act and could not be resolved under the Federal Tort Claims
Act. (Id. ¶ 3.) Counsel for the Government notified Plaintiff’s counsel that the Government could not
enter a tort settlement under the Federal Tort Claims Act and urged Plaintiff to submit a claim to the
Bureau of Reclamation under the Contract Disputes Act. (Id. ¶ 4.) The next day, Plaintiff’s counsel
emailed a signed copy of the originally proposed, but by then rescinded and withdrawn, settlement
stipulation to counsel for the Government. (Id. ¶ 5.) Although counsel for the Government has repeatedly
urged Plaintiff to present a claim to the appropriate contracting officer so that Plaintiff’s claim could be
resolved under the Contract Disputes Act, Plaintiff has not done so. (See England Decl. ¶¶ 4, 6-8.)
3
MEMORANDUM DECISION AND ORDER - 3
subject matter jurisdiction may either attack the allegations in the complaint or may be
made as a “speaking motion” attacking the existence of subject matter jurisdiction in fact.
Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When
a Rule 12(b)(1) motion attacks the substance of a complaint’s jurisdictional allegations
despite their formal sufficiency, the trial court may rely on affidavits and other evidence
submitted in connection with the motion. St. Clair v. City of Chico, 880 F.2d 199, 201
(9th Cir. 1989) (citing Berardinelli v. Castle & Cooke Inc., 587 F.2d 37, 39 (9th Cir.
1978)).
Because the issue in a factual attack under Rule 12(b)(1) is the “trial court's
jurisdiction—its very power to hear the case—there is substantial authority that the trial
court is free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and
the existence of disputed material facts will not preclude the trial court from evaluating
for itself the merits of jurisdictional claims.” Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977). Plaintiff bears the burden of proving that jurisdiction
exists. Mortensen, 549 F.2d at 891.
2.
Applicable Law
“It is axiomatic that the United States may not be sued without its consent and that
the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463
U.S. 206, 212 (1983). Statutes waiving sovereign immunity must be strictly adhered to,
and any waiver must be strictly construed in favor of the United States. Brady v. United
States, 211 F.3d 499, 502 (9th Cir. 2000).
MEMORANDUM DECISION AND ORDER - 4
Immunity of the United States to suits in tort was waived upon the enactment of
the Federal Tort Claims Act in 1946, which conferred on the district courts “exclusive
jurisdiction of civil actions on claims against the United States, for money damages…for
injury or loss of property…caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would be liable to the
claimant….” 28 U.S.C. § 1346(b).
For those cases not sounding in tort, the Tucker Act conferred upon the United
States Court of Federal Claims the power to “render judgment upon any claim against the
United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages.” 28 U.S.C. § 1491(a). 28 U.S.C.
§ 1941(a)(2) further grants the Court of Federal Claims “jurisdiction to render judgment
upon any claim by or against, or dispute with, a contractor arising under” the Contract
Disputes Act. Summit Multi-Family Hous. Corp. v. United States, 124 Fed. Cl. 562, 569
(2015).
The Contract Disputes Act (CDA), enacted in 1978, 4 covers any claim based upon
“any express or implied contract ... made by an executive agency for—(1) the
procurement of property, other than real property in being; (2) the procurement of
services; (3) the procurement of construction, alteration, repair, or maintenance of real
4
Contract Disputes Act of 1978, Pub. L. No. 95–563, 1978 U.S.C.C.A.N. (92 Stat.) 2383.
MEMORANDUM DECISION AND ORDER - 5
property; or (4) the disposal of personal property.” 41 U.S.C. § 7102(a). Under the CDA,
“procurement” means “the acquisition by purchase, lease or barter, of property or
services for the direct benefit or use of the Federal Government.” New Era Constr. v.
United States, 890 F.2d 1152, 1157 (Fed. Cir. 1989) (quotation and emphasis omitted).
The CDA sets forth its own jurisdictional requirements. See M. Maropakis
Carpentry, Inc. v. United States, 609 F.3d 1323, 1327–28 (Fed. Cir. 2010). Under the
CDA, claims by a government contractor against the United States must first be the
subject of a decision by the contracting officer, defined as “any person who ... has the
authority to enter into and administer contracts and make determinations and findings
with respect thereto.” 41 U.S.C. §§ 601(3), 605(a). The decision by the contracting
officer may be appealed to an agency board of contract appeals or to the United States
Court of Federal Claims. 41 U.S.C. §§ 607(d), 609(c). Further appeals from these bodies
must be filed with the United States Court of Appeals for the Federal Circuit. 41 U.S.C. §
607(g)(1); see United States v. Rockwell Int’l. Corp., 795 F.Supp. 1131, 1134 (N.D. Ga.
1992).
The review procedures under the CDA are exclusive of jurisdiction in any other
forum. 41 U.S.C. § 605(b); see also Mgt. Science Am., Inc. v. Pierce, 598 F.Supp. 223,
225 (N.D. Ga. 1984), aff'd, 778 F.2d 792 (11th Cir. 1985). Thus, federal district courts
lack jurisdiction over a contractor’s claim against the government which is subject to the
CDA. See S.Rep. No. 1118, 95th Cong., 2d Sess. 10, reprinted in 978 U.S.C.C.A.N.
5235, 5244 (noting that “U.S. district court jurisdiction is eliminated from Government
contract claims”).
MEMORANDUM DECISION AND ORDER - 6
To determine if the CDA applies, the Court must look to whether the dispute at
issue is one of contract. See Ingersoll–Rand Co. v. United States, 780 F.2d 74, 76 (D.C.
Cir. 1985). The court in Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982),
explained that courts should attempt “to make rational distinctions between actions
sounding genuinely in contract and those based on truly independent legal grounds.” 672
F.2d at 969–70. The Megapulse court further noted that, when examining “competing”
jurisdictional bases, the issue is “to determine if the claim so clearly presents a disguised
contract action that jurisdiction over the matter is properly limited to the Court of
Claims.” Id. at 968.
It is well-established that disguised contract actions may not escape the CDA. See,
e.g., Ingersoll–Rand, 780 F.2d at 77; Am. Science & Eng., Inc. v. Califano, 571 F.2d 58,
61 (1st Cir. 1978). Neither contractors nor the government may bring a contract action in
federal district court simply by recasting claims in tort language or as some statutory or
regulatory violation. See Sealtite Corp. v. General Services Admin., 614 F.Supp. 352, 354
(D. Colo. 1985) (rejecting attempt to “circumvent the [CDA] by characterizing dispute as
an action in replevin”). Effective enforcement of the jurisdictional limits of the CDA
mandates that courts recognize contract actions that are dressed in tort clothing. United
States v. J & E Salvage Co., 55 F.3d 985, 987–88 (4th Cir. 1995). See also Dalton v.
Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995) (“When the Contract
Disputes Act applies, it provides the exclusive mechanism for dispute resolution; the
Contract Disputes Act was not designed to serve as an alternative administrative remedy,
available at the contractor's option.”).
MEMORANDUM DECISION AND ORDER - 7
The definition of “claim” for purposes of the CDA derives from the Federal
Acquisition Regulation, 5 which implements the CDA. See M. Maropakis Carpentry, 609
F.3d at 1327–28. FAR 2.101 provides, in pertinent part, that “claim” means “a written
demand or written assertion by one of the contracting parties seeking, as a matter of right,
the payment of money in a sum certain, the adjustment or interpretation of contract terms,
or other relief arising under or relating to the contract.” Id.
The Federal Circuit, interpreting FAR 2.101, has held that a valid CDA claim
consists of three components: “(1) a written demand, (2) seeking, as a matter of right, (3)
the payment of money in a sum certain.” Northrop Grumman Computing Sys., Inc. v.
United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (citing Reflectone, Inc. v. Dalton, 60
F.3d 1572, 1575–76 (Fed. Cir. 1995)). The Federal Circuit has further explained that,
“[w]hile a valid claim under the CDA must contain ‘a clear and unequivocal statement
that gives the contracting officer adequate notice of the basis and amount of the claim,’
the claim need not take any particular form or use any particular wording.” Id. (quoting
Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). “All
that is required,” the Federal Circuit has observed, “is that the contractor submit in
writing to the contracting officer a clear and unequivocal statement that gives the
contracting officer adequate notice of the basis and amount of the claim.” Id. (quoting
Contract Cleaning Maint., Inc., 811 F.2d at 592).
The Federal Acquisition Regulation, or FAR, is available at www.acquisition.gov. FAR 7.4
governs decision making regarding whether to lease or purchase equipment.
5
MEMORANDUM DECISION AND ORDER - 8
For claims seeking more than $100,000, FAR 2.101 incorporates within the
definition of “claim” the CDA's certification requirement. 41 U.S.C. § 7103(b)(1). That
requirement provides:
For claims of more than $100,000 made by a contractor, the contractor shall
certify that—
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the
contractor's knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for
which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the
contractor.
Id. See also Summit Multi-Family Hous. Corp. v. United States, 124 Fed. Cl. 562, 569–70
(2015).
3.
Analysis
A. The United States Did Not Waive the Issue of the Court’s Jurisdiction
Plaintiff first argues Defendant admitted the Court had jurisdiction in this matter in
its Answer, and therefore waived the right to contest the Court’s jurisdiction. However,
“federal courts are courts of limited jurisdiction ... empowered to hear only those cases
that (1) are within the judicial power of the United States, as defined in the Constitution,
and (2) that have been entrusted to them by a jurisdictional grant by Congress.” United
States v. Jacobo Castillo, 496 F.3d 947, 951 (9th Cir. 2007) (quoting 13 Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE §
3522, at 60 (2d ed.1984) (footnote omitted)). While defects in procedural rules may be
waived or forfeited by parties who fail to object properly, defects in the Court’s subjectmatter jurisdiction “go to the inherent power of the court and cannot be waived or
MEMORANDUM DECISION AND ORDER - 9
forfeited.” Jacobo Castillo, 496 F.3d at 952. Accordingly, the Government’s admission in
its answer to Plaintiff’s assertion that the Court has jurisdiction does not prevent the
Court from examining the issue. Augustine v. United States, 704 F.2d 1074, 1077 (9th
Cir. 1983) (“[t]he court is under a continuing duty to dismiss an action whenever it
appears that the court lacks jurisdiction.”).
B. The Court Lacks Jurisdiction
The analysis in Todd Construction, L.P., v. United States, 656 F.3d 1306 (Fed. Cir.
2011) is instructive. There, the court explained that a “claim” is defined broadly in the
FAR, and so long as the claim “relat[es] to the contract,” it is a claim under the CDA,
thereby conferring jurisdiction in the Claims Court under the Tucker Act. 656 F.3d at
1311. The court further recognized that Congress chose expansive language in defining
the jurisdiction of the Claims Court over CDA disputes, and therefore courts must read
the definition of claim broadly. Id. Further, the FAR “has…ensured that review of
contract claims will be relatively easy to obtain, by defining the term ‘claim’ broadly, to
include a demand or assertion seeking…relief arising under or relating to the contract.”
Id. (quoting Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1271 (Fed. Cir.
1999)).
The court in Todd Construction noted also that the language of the FAR 2.101 is
extremely broad. Id. at 1312. “The term ‘related’ is typically defined as ‘associated;
connected.’” Id. (quoting Random House Webster’s UNABRIDGED DICTIONARY 1626 (2d
ed. 1998)). And, the United States Supreme Court has interpreted the term “related to”
broadly as well. Id. (citing Celotex Corp. v. Edwards, 514 U.S. 300, 307-08 (1995)
MEMORANDUM DECISION AND ORDER - 10
(holding that Congress’ jurisdictional grant to bankruptcy courts to hear proceedings
“related to” a bankruptcy case “suggests a grant of some breadth” and includes inter alia,
suits between third parties which have an effect on the bankruptcy estate).
To be a claim “relating to the contract” under the CDA, the claim “must have
some relationship to the terms or performance of a government contract.” Id. at 1312
(quoting Applied Cos. v. United States, 144 F.3d 1470, 1478 (Fed. Cir. 1998)). The FAR
expressly provides that government agencies may enter lease agreements, and that such
conduct falls within the procurement function of government agencies. New Era Constr.
v. United States, 890 F.2d 1152, 1157 (Fed. Cir. 1989) (defining “procurement” as
acquisition by purchase, lease or barter for the direct benefit or use of the federal
government). Plaintiff does not dispute that it entered into a lease agreement with the
Government providing for the Government’s use of the equipment. The Government’s
satisfactory performance under that lease agreement, which would include the obligation
to return the equipment in the same condition as it was upon delivery, is related to the
contract itself. So long as the claim relates to the Government’s performance under the
contract, CDA jurisdiction exists. Id. at 1314.
Plaintiff cannot recast its claim as a tort under the circumstances here. When faced
with a similar question, the United States Court of Appeals for the Fourth Circuit found
that the plaintiff’s claim of conversion had to be brought pursuant to the CDA. United
Federal Leasing, Inc. v. United States, 33 Fed. Appx. 672 (4th Cir. 2002). There, the
government entered into a contract to lease computer equipment to the Navy. The
contractor assigned its right and interest in the equipment to a subcontractor. When the
MEMORANDUM DECISION AND ORDER - 11
equipment was not returned upon termination of the lease agreement, the subcontractor
sued under the Federal Tort Claims Act for conversion. The court held that the claim was
contractual, because it was necessary to look at the terms of the contract to find the
source of the rights that the plaintiff claimed in the computer equipment. United Federal
Leasing, Inc., 33 Fed. Appx. at 674-75. The court explained that the plaintiff could not
overcome the court’s lack of jurisdiction by framing the claim against the United States
as a tort, and it affirmed the district court’s dismissal for lack of subject matter
jurisdiction. Id. at 674. See also Evers v. Astrue, 536 F.3d 651, 658 (7th Cir. 2008)
(explaining that the characterization or labeling of claims by the pleader is not
controlling).
The United States’ obligation here with respect to the care and safe return of the
equipment necessarily arises out of the terms of the lease agreement with Plaintiff. See,
e.g., U.S. v. Bostwick, 94 U.S. 53 (1876) (“in every lease there is, unless excluded by the
operation of some express covenant or agreement, an implied obligation on the part of the
lessee to so use the property as not unnecessarily to injury it, or…to treat the premises
demised in such manner that no injury be done....”). Accordingly, Plaintiff may not
invoke the jurisdiction of the Court by suing under the Federal Tort Claims Act (FTCA)
when the CDA covers the claims here.
The cases cited by Plaintiff to the contrary do not apply, as all were decided prior
to enactment of the CDA or did not discuss the CDA. For instance, Woodbury v. United
States, 313 F.2d 291 (9th Cir. 1963), involved a claim under the FTCA for damages for
breach of fiduciary duty arising out of a construction contract. There, the Ninth Circuit
MEMORANDUM DECISION AND ORDER - 12
affirmed the district court’s determination that the contractor could not maintain a tort
claim because the action was for breach of a contractual undertaking, and therefore it had
to be brought under the Tucker Act. Woodbury, 313 F.3d at 295. Woodbury was decided
prior to the passage of the CDA and required the court to engage in an analysis regarding
the source of the plaintiff’s rights. The court determined that the suit arose out of the
contract itself, because the defendant could have no liability unless the plaintiff could
prove the existence of a contract and breach of its terms. Id. at 297. Accordingly, the
court upheld the district court’s determination that it lacked jurisdiction. Id.
In Aleutco Corp. v. United States, 244 F.2d 674 (3rd Cir. 1957), the issue was
whether plaintiff’s action against the government for conversion could be maintained as a
tort or was a contract action required to be brought in the Court of Claims under the
Tucker Act, prior to the enactment of the CDA. There, the court explained that the
Tucker Act of 1887 created concurrent jurisdiction in the Court of Claims and the district
courts in suits in contract against the United States for claims of $10,000 or less, while
the Court of Claims had exclusive jurisdiction of all contract claims in excess of that
amount. 244 F.2d at 678. In Aleutco, the claim exceeded $10,000, requiring the court to
examine whether the action was one in tort or contract. Id. The court explained that the
plaintiff’s claim for conversion of property could have been brought in either the Court of
Claims based upon breach of the purchase agreement, or in district court, for conversion.
Id. at 679. At the time Aleutco was decided, there was no jurisdictional bar under the
Tucker Act, and the court explained that the jurisdiction of the Court of Claims, and by
MEMORANDUM DECISION AND ORDER - 13
extension the District Court, could be sustained where elements of both contract and tort
were involved. Id. at 679.
However, the CDA eliminated a plaintiff’s ability to choose the forum in a case
like Aleutco where a claim has elements of both contract and tort. Instead, the Court must
examine whether the claim “relates to” the terms or performance of a government
contract. Evers, 536 F.3d at 658. If it does, the CDA provides the exclusive mechanism
for dispute resolution. Dalton v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir.
1995).
The holding in Martin v. United States, 649 F.3d 701 (9th Cir. 1981), cited for
support by Plaintiff, is also inapposite. The plaintiff’s injuries in Martin arose out of
negligent repairs authorized by the Veterans Administration upon putting the plaintiff’s
house on the market for sale. There, the plaintiff suffered personal injuries when she
slipped and fell when she encountered a dangerous condition in the bathtub. The plaintiff
alleged tortious breach of a contractual duty to repair the premises, seeking damages in
excess of $10,000 for personal injury. There, the court had no trouble finding that the
FTCA governed despite the United States’ argument that the Tucker Act applied. 649
F.2d at 704. The court did not discuss the CDA, instead examining both Woodbury and
Aleutco and applying a similar analysis to the facts before it. The court arrived at the
conclusion that the plaintiff’s claim arose from an unsafe condition leading to a personal
injury – “a classic tort,” and it would be improper to limit the plaintiff to a purely
contractual remedy. 649 F.2d at 705.
MEMORANDUM DECISION AND ORDER - 14
In contrast to Martin and Aleutco, Plaintiff here seeks damages for purely
economic harm arising out of the breach of a lease agreement for the rental of equipment.
Plaintiff’s notice of tort claim indicates it is making “a claim to recover losses, per the
terms of the Rental Agreement between [Sunbelt] and [United States Bureau of
Reclamation].” (Dkt. 19-3 at 3.) The source of Plaintiff’s rights arises from the contract,
and the type of relief sought is to compensate for economic loss. See B & B Trucking,
Inc. v. U.S. Postal Serv., 406 F.3d 766, 768 (6th Cir 2005) (“The classification of a
particular action as one which is or is not [essentially contractual] depends both on the
source of the rights upon which the plaintiff bases its claim, and upon the type of relief
sought (or appropriate).”). Under such circumstances, the Court finds the CDA provides
the exclusive mechanism for resolution of Plaintiff’s claim. The Plaintiff’s attempt to rely
solely upon its assertion of a negligence claim to invoke jurisdiction is unavailing.
The proper disposition here is dismissal, as opposed to transfer of the case to the
Court of Claims. On the record before the Court, Plaintiff could not have brought this
action before the Court of Federal Claims because there is no showing that Plaintiff first
submitted a claim as required by Section 7103 of the CDA. Romano v. United States
Army Core of Engineers, No. 3:17-cv-930-JD, 2017 WL 6448221 *2 (N.D. Cal. Dec. 18,
2017); 41 U.S.C. § 7103. But see Mendenhall v. Kusicko, 857 F.2d 1378, 1379 (9th Cir.
1988) (ordering the action transferred to the Court of Claims and, without analysis,
contravening the District of Idaho’s order dismissing the action for lack of subject matter
jurisdiction pursuant to the CDA). The United States’ submissions show that Plaintiff did
MEMORANDUM DECISION AND ORDER - 15
not submit a claim to the contracting officer for the Bureau of Reclamation. Accordingly,
the Court will enter an order dismissing this matter for lack of subject matter jurisdiction.
CONCLUSION
Plaintiff’s claim is dismissed without prejudice. Plaintiff’s claim is one that relates
to the procurement of a lease agreement and is therefore governed by the Contract
Disputes Act.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Defendant’s Motion to Dismiss (Dkt. 19) is GRANTED.
2) The hearing set for October 31, 2018, is VACATED, and the Court will issue a
separate judgment dismissing the complaint without prejudice.
DATED: October 30, 2018
_________________________
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 16
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