Ogunniyi v. United States ( 2016 )

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No. 15-581C
Filed: January 19, 2015
FILED
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JAN I I 2016
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VICTOR OGUNNIYI, U.S, COURT OF
FEDERAL CLAIMS
Plaintiff,
Pro Se Plaintiff; Motion to
v.
Reconsider.
UNITED STATES,
Defendant.
* * * * * * * ,N N, * 'l * * ,1. +
Victor Ogunniyi, pro se, Lemon Grove, CA.
Reta E. Bezak, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her were Martin F.
Hockey, Jr., Assistant Director, Robert E. Kirschman, Jr., Director, Commercial
Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
civil Division, washington, D.C. Stephen Tobin, Naval Litigation office, office of the
General Counsel, of counsel.
ORDER
HORN. J.
Following the court's December 10, 20'15 Order granting defendant's motion to
dismiss p1q se plaintiff Victor ogunniyi's complaint, on December 29, 2015, plaintiff filed
a motion to reconsider "for a reversal of ruling."1 Plaintiff's motion to reconsider alleges
that "[r]egardless of the route this court takes in arriving at a conclusion to this case either
through the Contract Dispute [sic] Act (CDA) 41 U.S. Code S 7101-7109 or Tucker Act 28
u.s.c. s 1491; this court has Jurisdiction to adjudicate this merited case which has been
unduly prolonged due to legalese." Mr. ogunniyi's motion to reconsider generally repeats
his previous filings and submissions to this court and also to the Armed Services Board
of contract Appeals (ASBCA), including tort claims, the same breach of contract
allegations against defendant, and the contention that Mr. Ogunniyi was a third party
1 Although plaintiff does not provide a basis to support his entitlement to file a motion to
reconsidlr, the court notes that Rule 59(b) of the Rules of the United States Court of
Federal Claims (RCFC) (2015) permits a party to file a motion for reconsideration within
28 days afterentry ofjudgment. The court entered judgment on December 10,2015, and
plaintiff timely filed his motion for reconsideration on December 29, 2015. Accordingly,
the court reviews plaintiff s motion in accordance with RCFC 59(b)
beneficiary to a contract between the United States Department of the Navy and
Commissioning Solutions Global (CSG), which the company
is that plaintiff owns. Plaintiff
alleges that this court "has jurisdiction on the case as a fresh new case on Breach of
Contract filed by a third party beneficiary (Victor Ogunniyi as Plaintiff)." Plaintiff also
alleges that "[t]he doctrine of election could not be applicable because CSG saw the
decision of ASBCA 59254 as fatally flawed," and that "CSG and Victor Ogunniyi may be
two entities; but they are two same entities like a co-joined [sic] or paternal twins are
where the difference in identifying one from the other is only left to finger print. CSG and
Victor Ogunniyi are one and the same."
Reconsideration of a judgment is not intended to permit a party to retry its case
when it previously was afforded a full and fair opportunity to do so. The United States
Court of Appeals for the Federal Circuit has stated that: "The decision whether to grant
reconsideration lies largely within the discretion of the [trial] court." Yuba Natural Res..
lnc. v. United States,904 F.2d 1577, 1583 (Fed. Cir.), reh'q denied (Fed. Cir. 1990); see
also Carter v. United States,207 Ct. Cl. 316, 318, 518 F.2d 1199, 1199 (1975), cert.
denied, 423 U.S. 1076, reh'o denied, 424 U.S.950 (1976); Osaqe Tribe of Indians of
Okla., 97 Fed. Cl. 345,348 (2011) (discussing RCFC 59(a) and 60(b)); Oenqa v. United
States, 97 Fed. Cl. 80, 83 (2011) (discussing RCFC 59(a)); Websterv. United States, 92
Fed. Cl. 321,324, recons. denied,93 Fed. C|.676 (2010) (discussing RCFC 60(b)); Alpha
l. L.P. ex rel. Sands v. United States, 86 Fed. Cl. 126,129 (2009) (discussing RCFC 54(b)
and 59(a)); Banks v. United States, 84 Fed. Cl. 288, 291-92 (2008) (discussing RCFC
54(b) and 59(a)); Corriqan v. United States, 70 Fed. Cl. 665, 667-68 (2006) (discussing
RCFC 59(a)); Tritek Techs.. lnc. v. United States, 63 Fed. C|.740,752 (2005); Keeton
Corr.. lnc.v.UnitedStates,60Fed. Cl.251 ,253(2004) (discussingRCFC59(a)); Paalan
v. United States,58 Fed. C|.99, 105 (2003), aff'd, 120 F. App'x 817 (Fed. Cir.)' cert.
denied,546 U.S. 844(2005): Citizens Fed. Bank. FSBv. United States' 53 Fed. C|.793'
794 (2002) (discussing RCFC 59(a)).
"Motions for reconsideration must be supported 'by a showing of extraordinary
circumstances which justify relief."' Caldwell v. United States, 391 F.3d 1226' 1235 (Fed.
Cir. 2004) (quoting Fru-Con Constr. Coro. v. United States,44 Fed. Cl. 298' 300 (1999))'
reh'q en banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005) (discussing RCFC
59(a)); see also Fiskars, lnc. v. Hunt Mfq. Co.,279 F.3d at 1382 ("Rule 60(bX6) is
available only in extraordinary circumstances and only when the basis for relief does not
fall within any of the other subsections of Rule 60(b)." (citing Marquio. lnc. v. Fosber
America. lnc., 198 F.3d 1363, 1370 (Fed. Cir. 1999), reh'q denied (Fed. Cir.2000);
Provident Sav. Bank v. Popovich,Tl F.3d 696, 700 (7th Cir. 1995)); Oenqa v. United
States, 97 Fed. Cl. at 83; Seldovia Native Ass'n lnc. v. United States, 36 Fed. Cl. 593,
594 (1996), atfd, 144 F.3d 769 (Fed. Cir. 1998) (discussing RCFC 59(a)). Generally'
"[t]he cases seem to make [a] faulUno fault distinction the controlling factor in determining
whether extraordinary circumstances will be found or not. In a vast majority of cases
finding that extraordinary circumstances do exist so as to justify relief, the movant is
compietely without fault...." 12 Joseph T. Mclaughlin and Thomas D. Rowe, Jr., Moore's
Federal Practice S 60.4St3ltbl (3rd ed.2008) (discussing RCFC 60(b)(6)); see also Amado
v. Microsoft corp., 517 F.3d at 1363 (citing Pioneer lnv. Servs. Co. v. Brunswick Assoc.
Ltd. P'ship, 507 U.S. 380, 393 (1993)) (discussing RCFC 60(bXO)).
Courts must address reconsideration motions with "exceptional care." Carter v.
United States, 207 Ct. Cl. at 3'18, 518 F.2d at 1 1 99; see also Global Computer Enters. v.
United States, 88 Fed. Cl. 466, 468 (2009) (discussing RCFC 59(a)). "The three primary
grounds that justify reconsideration are: '(1) an intervening change in the controlling law;
(2) the availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice."' Delaware Vallev Floral Group. lnc. v. Shaw Rose Nets. LLC, 597
F .3d 1374,1383 (Fed. Cir. 2010); see also Griffin v. United States, 96 Fed. Cl. 1, 7 (2010),
mot. to amend denied, apoeal dismissed , 454 F . App'x 899 (Fed. Cir. 201 1) (discussing
RCFC 59(a)); Totolo/Kinq Joint Venture v. United States, 89 Fed. Cl. 442, 444 (2009)
(quotingStocktonE.WaterDist.v.UnitedStates,T6Fed.Cl.49T,499(2007), aff'din
pgd, vacated in pA-d, rev'd in part on other qrounds, 583 F.3d 1344 (2009) (citation
omitted) (discussing RCFC 59(a))) apoeal dismissed, 431 F. App'x 895 (Fed. Cir.), reh'q
denied (201 1) (discussing RCFC 59(a)); Dairvland Power Coop. v. United States, 90 Fed.
Cl. 615, 652 (2009), recons. denied, No. 04-106C, 2010 WL 637793 (Fed. Cl. Feb.22,
2010), aff'd in pgd, vacated in part on other qrounds, 201 1 WL 2519519 (Fed. Cir. June
24, 2011\ (discussing RCFC 59(a)); Matthews v. United States, 73 Fed. Cl. 524, 526
(2006) (citations omitted) (discussing RCFC 59); Prati v. United States, 82 Fed. Cl. at 376
(discussing RCFC 59(a)); TritekTechs.. lnc. v. United States,63 Fed. CLat752; Bannum'
lnc. v. United States, 59 Fed. Cl. 241 ,243 (2003) (discussing RCFC 59(a)); Citizens Fed.
Bank. FSB v. United States, 53 Fed. Cl. at 794; Strickland v. United States, 36 Fed. Cl.
651, 657, recons. denied (1996) (discussing RCFC 59(a)); Bishop v. United States,26
Cl. Ct.281,286, recons. denied (1992) (discussing RUSCC 59). "Manifest," as in
"manifest injustice," is defined as "clearly apparent or obvious." Ammex. lnc. v. United
States,52 Fed. Cl. 555, 557 (2002'l,atfd,384 F.3d 1368 (Fed. Cir.2004), cert. denied,
544 U.S. 948 (2005) (discussing RcFc 59). "where a party seeks reconsideration on the
ground of manifest injustice, it cannot prevail unless it demonstrates that any injustice is
apparent to the point of being almost indisputable."' gIff!-n-y-J-0i!CdStA!S, 96 Fed. Cl.
at 7 (quoting Pac. Gas & Elec. Co. v. United States,74Fed.Cl.779,785 (2006)' affd in
pa[, rev'd in pg;! on other qrounds, 536 F.3d 1282 (Fed. Cir. 2008)). "A court, therefore,
will not grant a motion for reconsideration if the movant 'merely reasserts...arguments
previously made...all of which were carefully considered by the court'"' Ammgx. lnc. v.
United states, 52 Fed. Cl. at 557 (quoting Principal Mut. Life lns. co. v. United states, 29
Fed. Cl. 157,164 (1993), affd, 50 F.3d 1021 (Fed. Cir.), reh'q denied, en banc suqqestion
declined (Fed. Cir. 1995)) (emphasis in original); see also Griffin v. United States, 96 Fed.
Ct. at Z; Bowlinq v. United States, 93 Fed. Cl. 551, 562, recons. denied (2010) (discussing
RCFC 59(a) and 60(b)); Websterv. United States,92 Fed. Cl'a|324 (discussing RCFC
59(a) and 60(b)); Pincknev v. United States, 90 Fed. Cl. 550, 555 (2009); Tritek Techs..
lnc. v. United States, 63 Fed. Cl. a1752.
In sum, it is logical and well established that, "'[t]he litigation process rests on the
assumption that both parties present their case once, to their best advantage;' a motion
for reconsideration thus should not be based on evidence that was readily available at
the time the motion was heard." Seldovia Native Ass'n lnc. v. United States, 36 Fed. Cl.
at 594 (quoting Aerolease Lonq Beach v. United States, 31 Fed. C|.342,376, affd' 39
F.3d 1 198 (Fed. Cir. 1994) (table)). "Posfopinion motions to reconsider are not favored,
especially ,where a party has had a fair opportunity to... litigate the point in issue."'
Aerolease Lonq Beach v. United States, 31 Fed. Cl. at 376 (quoting ETSl9.)ll!g-y.,--lJ.l]j!d
States,4 Cl. Ct.317,318, aff'd,746F.2d 1489 (Fed. Cir. 1984) (citing Gen. Elec. Co. v.
United States, 189 Ct. Cl. 116,117-18,416F.2d 1320,1321 (1969))) (omission in original;
other citation omitted).
Mr. Ogunniyi's motion to reconsider does not raise any new issues, but, instead,
plaintiff repeats the arguments submitted to the court in his previous filings. Regarding
Mr. Ogunniyi's allegation that he is the proper party plaintiff because he and CSG are
"one in the same," in its December 10,2015 Order, this court explained that:
RCFC 83.1(a)(3) provides that an "individual who is not an attorney may
represent oneself or a member of one's immediate family, but may not
represent a corporation, an entity, or any other person in any other
proceeding before this court." RCFC 83.1(a)(3) (2015). In his complaint,
plaintiff describes "Commissioning Solutions Global LLC" as "a small
engineering and technical services company." Defendant argues that "to
the extent that Mr. Ogunniyi does seek to represent CSG, this Court's rules
do not permit him to do so." The parties do not dispute that plaintiff is trying
to pursue his case in this court oro se or that CSG is a corporate entity. In
accordance with RCFC 83.1(a)(3), plaintiff cannot represent the interests of
CSG before this court because he is not an attorney admitted to the bar of
this court. In his complaint and his subsequent submissions to the court,
plaintiff confuses and conflates himself and his company, CSG. Plaintiff
goes so far as to assert that "Victor Ogunniyi and Commissioning Solutions
Global/CSG are one in the same." Plaintiff and CSG, however, are separate
under the law, and plaintiff cannot cloak himself as CSG in order to assert
a claim for damages against the United States. The court also notes that in
plaintiff's prior appeals to the ASBCA and the Federal Circuit, CSG was the
named plaintiff. See Commissioninq Solutions Global. LLC, A.S.B.C.A. No.
59254, 14-1 B.C.A. fl 35,695, 2014 WL 4073074. To the extent that Mr.
Ogunniyi's complaint is a veiled attempt to allow him to argue on behalf of
CSG and seek essentially a second appeal or review of the contracting
officer's decision against CSG, under RCFC 83.1(a)(3), absent a notice of
appearance filed by an attorney admitted to this court, plaintiffs complaint
must be dismissed. Since no such notice of appearance has been filed, this
court cannot proceed to adjudicate plaintiffs case, which is in fact a claim
for an alleged violation of the contract with CSG.
Oqunnivi v.United States,2014 WL 8540486, at -3 (Fed. Cl. Dec. 10,2015).
Notwithstanding plaintiff's argument that "CSG was finding it difficult to secure the
services of any attorney on admittance to the bar of the court, either on Pro-bono or
Contingency Basis," the rules of this court do not allow an individual who is not admitted
to the bar of this court to represent a corporation, entity, or person other than himself.
The court also explained that:
As stated in the Tucker Act, 28 U.S.C. S 1491(aX1), privity of contract
between a plaintiff and the United States government is required to bring a
cause of action in the United States Court of Federal Claims for express
and implied contracts. See Cieneqa Gardens v. United States, 194 F.3d
1231, 1239 (Fed. Cir. 1998) ("Under the Tucker Act, the Court of Federal
Claims has jurisdiction over claims based on 'any express or implied
contract with the United States.'28 U.S.C. S 1491(a)(1) (1994). We have
stated that'[t]o maintain a cause of action pursuant to the Tucker Act that
is based on a contract, the contract must be between the plaintiff and the
government.' Ransom v. United States. 900 F.2d 242, 244 (Fed. Cir.
1990).), cert. denied, 528 U.S. 820 (1999); see also Estes Exp. Lines v.
United States. 739 F.3d 689, 693 (Fed. Cir. 2014); Flexfab, L.L.C. v. United
States, 424 F.3d 1254, 1265 (Fed. Cir. 2005) (The "government consents
to be sued only by those with whom it has privity of contract."), S. Cal. Fed.
Sav. & Loan Ass'n v. United States, 422 F.3d 1319, 1328 (Fed. Cir.) ("A
plaintiff must be in privity with the United States to have standing to sue the
sovereign on a contract claim," but noting exceptions to this general rule
(citing Anderson v. United States,344 F.3d 1343, 1352 (Fed. Cir.), reh'q
and reh'q en banc denied (Fed. Cir. 2003))); United States v. Alqoma
Lumber Co., 305 U.S. 415,421 (1939))), reh'q and reh'q en banc denied
(Fed. Cir. 2005), cert. denied, 548 U.S. 904 (2006); Erickson Air Crane Co.
of Wash. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) ("The
government consents to be sued only by those with whom it has privity of
contract.").2
Although plaintiff argues that there is an express and implied contract
between himself and defendant, plaintiff's allegations rest on his idea that
he and CSG, as he states, are "one in the same," a theory that is not viable
in this court. The parties do not dispute that there is a contract between the
United States and CSG, however, as previously noted, CSG is not a plaintiff
in the above captioned case and Mr. Ogunniyi is prohibited from
representing CSG under RCFC 83.1(a)(3). In entering into Contract No
N55236-13-D-0001 for hydraulic/lube oil flush services, privity of contract
was created between CSG and the United States, not between Mr. Ogunniyi
and the United States, regardless of his role in the company. Accordingly,
without privity of contract, plaintiff's complaint must be dismissed unless
plaintiff can demonstrate that he is a third party beneficiary of the contract.
2
As stated in this court's August 21 , 2015 Order, in order for this court to have jurisdiction
under the Tucker Act, the party seeking relief must be in privity of contract with the
government. See Winter v. FloorPro, Inc., 570 F.3d 1367,1372 (Fed. Cir. 2009). A party
lacking privity with the United States may be able to sue the federal government, however,
if it can demonstrate that it is an intended third-party beneficiary of a contract with the
United states. see sioux Honev Ass'n v. Hartford Fire lns. co.,672 F.3d 1041, 1056
(Fed. Cir.), cert. denied, 133 S. Ct. 126 (2012).
Oqunnivi v. United States,2014WL 8540486, at
*5. The court went on to conclude that
plaintiff was not a third party beneficiary to the contract because plaintifi "failed to
establish that there is any language in the contract that reflects an intention to benefit Mr.
Ogunniyi directly. The parties' submissions demonstrate that the contract was entered
into so that CSG would provide the services agreed to under the contract." Oqunnivi v.
-6.
United States, 2014 WL 8540486, at
To the extent that plaintiff attempts to reassert his tort claims in the motion to
reconsider, the court explained in its prior Order that
because this court does not possess jurisdiction over claims that sound in
tort. See 28 U.S.C. $ 1491(a) ("The United States Court of Federal Claims
shall have jurisdiction 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 in
cases not sounding in tort."); see also Keene Coro. v. United States, 508
U.S. 200, 214 (1993)', Rick's Mushroom Serv.. lnc. v. United States, 521
F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998);
Brown v. United States, 105 F.3d 621,623 (Fed. Cir.), reh'q denied (Fed.
Cir. 1997); Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1070 n.8
(Fed. Cir.), reh'q denied, en banc suqqestion declined (Fed. Cir.)' cert.
denied,513 U.S.961 (1994); Hampel v. United States,97 Fed Cl' at238;
Woodson v. United States, 89 Fed. Cl. 640, 650 (2009); McCullouqh v.
United States, 76 Fed. Cl. 1, 3 (2006), reh'q denied (Fed. Cir.) cert. denied,
552 U.S. 1050 (2007) ; Aqee v. United States ,72 Fed. Cl' 284,290 (2006);
Zhenqxinq v. United States,71 Fed. C1.732,739, affd,204 F. App'x 885
(Fed. Cir.), reh'q denied (Fed. Cir. 2006).
Oounnivi v. United States, 2014 WL 8540486, at.6.
In his motion to reconsider, Mr. Ogunniyi attempts to retry the same arguments
that were thoroughly briefed by both parties, considered, and addressed in this court's
December 10,2015 Order. As such, Mr. ogunniyi has not demonstrated extraordinary
circumstances which justify relief or provide any other adequate basis to reconsider this
court's earlier Order dismissing plaintiffs breach of contract and tort claims for lack of
subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, plaintiff's motion for reconsideration is DENIED.
IT IS SO ORDERED.
Judge