Liobmedia, LLC v. DataFlow/Alaska, Incorporated , 349 F. App'x 843 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1353
LIOBMEDIA, LLC,
Plaintiff - Appellant,
v.
DATAFLOW/ALASKA, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cv-00355-CMH-TRJ)
Argued: March 24, 2009 Decided: July 21, 2009
Before WILKINSON, Circuit Judge, Eugene E. SILER, Jr., Senior
Circuit Judge of the United States Court of Appeals for the
Sixth Circuit, sitting by designation, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Siler wrote the
opinion, in which Judge Wilkinson and Judge Conrad joined.
ARGUED: Michael Francis Smith, BUTZEL LONG, Washington, D.C.,
for Appellant. Douglas Clark Proxmire, PATTON BOGGS, LLP,
Washington, D.C., for Appellee. ON BRIEF: J. William Eshelman,
TIGHE, PATTON, ARMSTRONG & TEASDALE, PLLC, Washington, D.C., for
Appellant. Michael J. Carrato, PATTON BOGGS, LLP, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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SILER, Senior Circuit Judge:
Liobmedia seeks reversal of the district court’s judgment
as a matter of law in favor of Dataflow arising from a breach of
contract claim. This case involves a so-called “teaming
agreement” among the parties to work on securing a federal
contract. The district court determined that Liobmedia did not
prove damages and awarded judgment as a matter of law to
Dataflow. Liobmedia appeals the judgment by arguing: (1) the
judgment was procedurally irregular; (2) the judgment regarding
the limitation on damages was substantively erroneous because it
should have been presented to a jury; and (3) the district court
erred when it denied Liobmedia’s motion to amend its complaint.
Because the parties are familiar with the relevant facts, we
discuss them only as necessary. We affirm.
I.
Liobmedia argues that the district court reversibly erred
when it sua sponte granted judgment as a matter of law in favor
of Dataflow. A district court may grant summary judgment sua
sponte, so long as the party against whom summary judgment is
granted has notice and “an adequate opportunity to demonstrate a
genuine issue of material fact.” U.S. Dev. Corp. v. Peoples
Fed. Sav. & Loan Ass’n, 873 F.2d 731, 735 (4th Cir. 1989).
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Liobmedia had notice and an opportunity to be heard before
the district court granted judgment as a matter of law. As
damages is an essential element of a breach of contract claim,
once Liobmedia was served with Dataflow’s motion to limit
damages, Liobmedia knew or should have known that the motion
sought to bar Liobmedia’s recovery of all damages as the motion
sought to limit recovery to “an amount not to exceed one dollar
($1.00).”
In support of its motion to limit damages, Dataflow argued
that, as a matter of law, the language of the Teaming Agreement
precluded the damages that Liobmedia sought to recover.
Liobmedia recognized this in its opposition to the motion when
it stated, “[In the motion to limit damages,] Defendant argues
that the Teaming Agreement is unenforceable as a matter of law,
and that if Defendant did breach the Teaming Agreement, any
recovery of damages is too speculative as a matter of law.”
Liobmedia’s argument that it lacked notice is inconsistent with
its own characterization of Dataflow’s motion.
Liobmedia also had sufficient opportunity to be heard on
the issue. Rule 7(F) of the local rules for the Eastern
District of Virginia allows a party opposing a motion eleven
days to file an opposition. E.D. VA. LOCAL RULE 7(F). This rule
applies to all motions, including motions in limine and motions
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for summary judgment. Here, the district court complied with
this rule.
Liobmedia’s argument that a statement made by counsel for
Dataflow at a previous hearing, which indicated that Liobmedia’s
claim presented “an issue of fact that can’t be dealt with on
summary judgment,” is unavailing. Counsel’s statements of legal
opinion never bind district courts to follow them. See New
Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 24 (4th Cir. 1963)
(ruling that the doctrine of judicial admissions does not apply
to statements of legal opinion by counsel).
II.
In addition to Liobmedia’s procedural arguments, it claims
that the district court erred substantively. Liobmedia contends
that the issue of damages is a question for the jury to decide,
not for the district court. However, the district court
properly interpreted the Teaming Agreement and correctly
determined that the damages that Liobmedia sought could not be
recovered.
Both parties disagree as to which jurisdiction’s law
applies to their dispute. The Teaming Agreement provides:
6.13 Irrespective of the place of performance, this
Agreement will be construed and interpreted according
to the federal common law of government contracts as
enunciated and applied by federal judicial bodies,
Boards of Contract Appeals, and quasi-judicial
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agencies of the federal government. To the extent
that the federal common law of government contracts is
not dispositive, the laws of Alaska shall apply.
Liobmedia argues that the federal common law of contracts
applies. Dataflow argues that Alaska law applies because there
is no federal government contract law governing the
enforceability of teaming agreements between commercial parties.
Regardless of which law is applied, Liobmedia seeks
consequential damages, which are not recoverable under the
Teaming Agreement.
Liobmedia is not seeking direct damages arising out of a
breach of the Teaming Agreement. Instead, it seeks damages for
lost profits under a prospective Dataflow/Liobmedia subcontract
that was never entered into. The Teaming Agreement is merely an
agreement to negotiate. It provides in pertinent part:
5.01 Should Dataflow be awarded the contract or task
order for the Project, the parties agree to enter into
good faith negotiations intending to culminate in a
future subcontract or purchase order to be awarded
to Liobmedia, subject to necessary Government
approvals, required flow-down clauses, and negotiation
of mutually acceptable price, delivery, terms, and
conditions. In no event shall such future subcontract
or purchase order exceed fifty percent (50%) of
the cost of labor or other permissible limits of
Dataflow’s 8(a) STARS contract GS-06F-0212Z.
In addition, the Teaming Agreement limits the types of damages
that can be recovered:
6.08 Neither party shall be liable to the other for
any indirect, incidental, special, or consequential
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damages, however caused, whether as a consequence of
the negligence of the one party or otherwise.
Since the Teaming Agreement only creates an obligation on the
parties to engage in good faith negotiations regarding a future
subcontract and does not constitute an obligation to enter into
a subcontract, Liobmedia’s claim for lost profits on the
subcontract cannot constitute direct damages.
In Valdez Fisheries Development Association v. Alyeska
Pipeline, the Alaska Supreme Court concluded that “[e]ven if the
agreement-to-negotiate claim were to proceed, [the plaintiff]
would only be entitled to recover costs associated with the
negotiations themselves” and not lost profits on the proposed
agreement that was never performed. 45 P.3d 657, 667 (Alaska
2002). Liobmedia does not seek to recover the costs associated
with the subcontract negotiations, but the lost profits that it
believes it would have realized had Dataflow and Liobmedia
reached a subcontract agreement.
In addition, under the federal common law of government
contracts, Liobmedia’s claim for lost profits constitutes a
claim for consequential damages which are precluded under the
Teaming Agreement. See New Valley Corp. v. United States, 72
Fed. Cl. 411, 414 n.2 (2006) (“the consequential damages measure
emphasizes income or loss, or cash flow, including losses that
may result far into the future”). Liobmedia seeks to recover
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profits that it may have received as a consequence of the
negotiation of a subcontract and its profits as a subcontractor.
Next, Liobmedia argues that the district court improperly
substituted its judgment for that of a jury when it “expressly
awarded damages” in the amount of one dollar. This argument is
unavailing because the district court did not award damages.
A determination as to whether damages are recoverable at
all is a matter of law, while the function of a jury when
awarding damages is to determine the amount of damages once a
finding is made that a party is entitled to recovery. See
Chesapeake & Ohio R.R. Co. v. Winder, 23 F.2d 794, 795-96 (4th
Cir. 1928).
Dataflow’s motion to limit the damages to one dollar was
granted. The district court then determined that Liobmedia’s
claim must fail as a matter of law. It did not award damages in
any amount to Liobmedia. It merely limited the amount that could
be awarded.
Finally, Liobmedia argues that it is entitled to damages
because Dataflow and Liobmedia reached an oral agreement on
October 7, 2006, during a telephone conversation that Liobmedia
“would receive 17 percent of Dataflow’s fixed costs under the
FinCen Contract.” However, the Teaming Agreement required that
Dataflow and Liobmedia reach an agreement on “price, delivery,
terms and conditions.” In addition, the Teaming Agreement
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contemplates that all subcontract negotiations would take place
after Dataflow received the contract from the Department of
Treasury. The Department of Treasury had not yet awarded the
contract on October 7, 2006.
III.
The district court properly denied Liobmedia’s motion to
amend its complaint. A post-judgment motion to amend a
complaint may only be granted where the judgment dismissing the
complaint is first vacated pursuant to Rules 59 or 60 of the
Federal Rules of Civil Procedure. See Laber v. Harvey, 438 F.3d
404, 429 (4th Cir. 2006) (citing Cooper v. Shumway, 780 F.2d 27,
29 (10th Cir. 1985)) (“[O]nce judgment is entered, the filing of
an amended complaint is not permissible until judgment is set
aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).”).
Since Liobmedia did not provide a sufficient basis for the
district court to set aside its judgment, there was no complaint
for Liobmedia to amend.
The grounds on which a district court may, in its own
discretion, reconsider a judgment are: (1) an intervening change
in controlling law; (2) newly discovered evidence; or (3) a
clear error of law. Sciolino v. City of Newport, 480 F.3d 642,
651 (4th Cir. 2007). In support of its motion for
reconsideration, Liobmedia asserted that Virginia substantive
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law should have applied and provided allegations of the oral
agreement reached on October 7, 2006.
Liobmedia admits that it erred when it asserted that
Virginia law applied to this case. Therefore, the court need
not consider the application of Virginia law as a justification
to hold that the district court abused its discretion in denying
the motion for reconsideration. In addition, the alleged oral
agreement does not constitute “newly discovered evidence” as the
content of that conversation was alleged in Liobmedia’s original
complaint.
AFFIRMED
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