Ocampo v. United States of America et al, No. 3:2015cv00180 - Document 210 (S.D. Cal. 2019)
Court Description: ORDER Granting Defendant Nassco's Motion to Dismiss. (Doc. No. 156 ) The United States' cross-claim for breach of contract is DISMISSED without prejudice. The hearing set for July 15, 2019 is VACATED. Signed by Judge John A. Houston on 7/12/2019. (tcf)
Download PDF
<![CDATA[
Ocampo v. United States of America et al Doc. 210 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 KAREN OCAMPO, as personal representative of SALOMON RODRIGUEZ, Case No.: 15cv00180 JAH-WVG ORDER GRANTING DEFENDANT NASSCO’S MOTION TO DISMISS [Doc. No. 156] Plaintiff, v. UNITED STATES OF AMERICA, et. al. Defendant. AND RELATED CROSS CLAIM. 18 19 Pending before the Court is Defendant National Steel and Shipbuilding Company’s 20 (“NASSCO”) motion to dismiss Defendant United State’s second cross-claim for breach 21 of express maritime contract. The United States opposes the motion and Plaintiff takes no 22 position. After a thorough review of the parties’ submissions and for the reasons discussed 23 below, the Court GRANTS Defendant NASSCO’s motion to dismiss. 24 BACKGROUND 25 On January 27, 2015, Damaris Manzanero Vazquez, appearing as the personal 26 representative of Salomon Rodriguez, filed a complaint against United States of America 27 and NASSCO. On November 23, 2015, Anakaren Lopez, appearing as the personal 28 representative of Salomon Rodriguez, filed a First Amended Complaint and, filed a Second 1 15cv00180 JAH-WVG Dockets.Justia.com 1 Amended Complaint on March 14, 2017. On November 6, 2017, Plaintiff filed a Third 2 Amended Complaint (“TAC”) which replaced Anakaren Lopez with Karen Ocampo as the 3 personal representative for Salomon Rodriguez. Plaintiff seeks damages for negligence 4 and alleges Defendants’ negligence caused Salomon Rodriguez to fall off the unguarded 5 side of an elevator platform approximately 98 feet down an elevator trunk while working 6 aboard the USS Boxer in navigable waters at Pier 13, Naval Station, San Diego, California. 7 TAC ¶¶ 11 - 21. Plaintiff asserts, as the decedent’s personal representative, she is entitled 8 to recover on behalf of Mr. Rodriguez’s minor son. Id. ¶ 27. 9 The United States filed an answer and cross claim against NASSCO asserting claims 10 for negligence and contribution, and breach of express maritime contract. NASSCO filed 11 an answer to the FAC and an answer to the crossclaim. 12 NASSCO filed a motion for summary judgment or, in the alternative, partial 13 summary judgment which this Court denied by order filed September 24, 2018. NASSCO 14 filed the pending motion to dismiss on March 22, 2019. Plaintiff filed its statement of no 15 position on the motion on March 27, 2019. The United States filed an opposition on April 16 29, 2019 and NASSCO filed a reply on May 6, 2019. NASSCO and the United States 17 appeared before this Court for a hearing on the motion to dismiss on May 21, 2019. After 18 hearing oral argument, the Court took the matter under submission. 19 20 LEGAL STANDARD NASSCO seeks to dismiss the United States’ cross-claim for breach of express 21 maritime contract under Rule 12(b)(1) of the Federal Rules of Civil Procedure. 22 defendant may seek to dismiss a complaint for lack of jurisdiction over the subject matter 23 pursuant to Rule 12(b)(1). The federal court is one of limited jurisdiction. See Gould v. 24 Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot 25 reach the merits of any dispute until it confirms its own subject matter jurisdiction. See 26 Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). When considering a 27 Rule12(b)(1) motion to dismiss, the district court is free to hear evidence regarding 28 jurisdiction and to rule on that issue prior to trial, resolving factual disputes where A 2 15cv00180 JAH-WVG 1 necessary. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In such 2 circumstances, “[n]o presumptive truthfulness attaches to plaintiff’s allegations, and the 3 existence of disputed facts will not preclude the trial court from evaluating for itself the 4 merits of jurisdictional claims.” 5 Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The party seeking to 6 invoke jurisdiction has the burden of establishing that jurisdiction exists. See Kokkonen 7 v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 8 Id. (quoting Thornhill Publishing Co. v. General DISCUSSION 9 NASSCO argues the Contract Disputes Act of 1978 (“CDA”) prohibits this Court 10 from hearing the United States’ breach of contract claim. Specifically, NASSCO argues 11 the CDA prohibits any party to a government contract from bringing contract-related 12 claims before exhausting administrative remedies and the United States failed to exhaust 13 the administrative remedies prior to filing its cross-claim. NASSCO further argues the 14 United States cannot comply with the jurisdictional requirements of exhausting 15 administrative remedies because its purported claim is not ripe, in that the United States 16 cannot submit a claim without a sum certain and cannot identify a sum certain until the 17 conclusion of the negligence action. 18 In opposition, the United States initially contends the motion is untimely. The 19 United States also argues once Plaintiff filed suit and placed the contract into litigation, the 20 Department of Justice (“DOJ”) gained complete control of the litigation pursuant to 28 21 U.S.C. section 516 and, thereby, divested the contracting officer (“CO”) of authority to act 22 under on the contract under the CDA. The United States contends section 516 divests the 23 CO from hearing and deciding contract claims that are related to claims before the Court 24 and maintains Plaintiff asserts the accident occurred as a direct and proximate result of 25 NASSCO’s multiple failures to perform its contractual obligations. Additionally, the 26 United States maintains NASSCO put the contract at issue by attaching it to its 27 unsuccessful motion for summary judgment and listing it as a trial exhibit, the Court looked 28 to the contract as part of its order denying the motion for summary judgment, and the trial 3 15cv00180 JAH-WVG 1 in this matter will focus on NASSCO’s breaches of contract, the same claims the CO would 2 review. The United States maintains this issue is one of first impression and it is the facts 3 of this case that lead to this result. 4 The United States further contends if NASSCO argues that the exclusive forum for 5 deciding issues related to government contacts lies with the United States Court of Appeals 6 for the Federal Circuit, it is mistaken, because 41 U.S.C. section 7107 carves out an 7 exception for contract claims falling under the Suits in Admiralty Act and/or the Public 8 Vessels Act and section 7102 provides that appeals arising under maritime law are 9 governed by the Admiralty Act or the Public Vessels Act. 10 In reply, NASSCO argues the motion is not untimely because the question of subject 11 matter jurisdiction can be brought at any time. NASSCO maintains the United States does 12 not challenge that its breach of contract claim is governed by the CDA nor that it failed to 13 comply with the CDA by bringing its cross-claim. 14 NASSCO also argues the three cases relied on by the United States to create this 15 argument are inapposite and the United States’ reliance on them is misleading, and the 16 argument that the CDA can be eviscerated by a third party simply naming the United States 17 and raising a government contract in a tort action is nonsensical. Additionally, NASSCO 18 argues the United States’ attempts to assert that this Court has jurisdiction over the case 19 under 41 U.S.C. section 7102 is a red herring because a district court can obtain jurisdiction 20 over an appeal from a contracting officer’s final decision if the contractor appealing 21 chooses so. Here, there is no final decision. 22 As an initial matter, a motion challenging jurisdiction may be made “any time during 23 the proceedings.” Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 595 24 (9th Cir. 1996). As such, Defendant’s motion is not untimely. 25 The CDA requires claims by the government against a contractor relating to a 26 contract for the (1) procurement of property, (2) procurement of services, (3) procurement 27 of construction, alteration, repair or maintenance of real property and (4) the disposal of 28 personal property, be submitted to the contracting officer. 41 U.S.C. §§ 7102, 7103. The 4 15cv00180 JAH-WVG 1 United States does not dispute the CDA applies to its claim for breach of contract. Instead, 2 the United States argues the Court has jurisdiction to hear the case because the CO was 3 divested of authority to act on the claim once Plaintiff filed this action. Pursuant to 28 4 U.S.C. section 516, “the conduct of litigation in which the United States, an agency, or 5 officer thereof is a party. . .is reserved to the officers of the Department of Justice, under 6 the direction of the Attorney General.” The power must be narrowly construed. Hughes 7 Aircraft Co. v. U.S., 534 F.2d 889, 901 (Ct.Cl. 1976). The DOJ’s exclusive control is 8 limited to conduct of pending litigation and does not encompass related matters not 9 currently pending. Id. Plaintiff’s claims pending before this Court involve allegations that 10 the accident was a result of NASSCO’s failure to perform certain contractual obligations. 11 The contract and alleged breach of the contract are at issue in this action. Assuming the 12 United States’ related breach of contract claim was sufficiently related to Plaintiff’s claims 13 to be considered pending at the time Plaintiff’s complaint was filed, the CO is divested of 14 authority to address the United States breach of contract claim. 15 However, the United States does not explain or provide support for its contention 16 that the Court gains jurisdiction to hear the breach of contract claim because the CO is 17 divested of authority to address the claim. The cases relied upon by the United States 18 demonstrate the CO is divested of authority to act on a claim arising from pending litigation 19 but they do not support the United States’ contention that the Court has jurisdiction over 20 the claim. For example, in Peterson Builders, Inc. v. U.S., 27 Fed.Cl. 443 (1993), a 21 contractor sought to amend its complaint against the United States to add a claim for duress. 22 A previous claim for duress was dismissed for failure to present the claim to the contracting 23 officer. Thereafter, the plaintiff submitted a claim for duress to the contracting officer who 24 informed the plaintiff the CO lacked authority to issue a decision. In the motion seeking 25 to amend the complaint, the plaintiff sought to amend his claim under the 60 day deemed 26 denial provisions of the CDA, which permitted a contractor to bring a suit on a contract if 27 the CO fails to issue a decision or notify the contractor of when a decision will be 28 forthcoming within 60 days of receipt of the claim. The court denied the plaintiff’s motion 5 15cv00180 JAH-WVG 1 for leave to file its amended complaint upon finding the CO was not obligated to address 2 the claim because the CO lacked authority to act when the litigation was being pursued by 3 the Attorney General. Id. at 445. The finding that the CO was divested of authority to 4 address the claim did not lead to jurisdiction in the court. Similarly, the court in Boeing 5 Co. v. U.S., 26 Cl.Ct. 529 (1992), recognized the DOJ’s exclusive authority over related 6 claims but does not support the United States’ contention that the Court has jurisdiction to 7 hear a related claim. 8 9 Here, the United States failed to submit the breach of contract claim to the CO prior to filing its cross-claim. As such, the Court is without jurisdiction to hear the claim. 10 CONCLUSION AND ORDER 11 Based on the foregoing, IT IS HEREBY ORDERED: 12 1. 13 14 15 16 17 18 Defendant NASSCO’s motion to dismiss is GRANTED. The United States’ cross-claim for breach of contract is DISMISSED without prejudice. 2. DATED: The hearing set for July 15, 2019 is VACATED. July 12, 2019 _________________________________ JOHN A. HOUSTON United States District Judge 19 20 21 22 23 24 25 26 27 28 6 15cv00180 JAH-WVG
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
