Peterson Industrial Depot, Inc. v. United States ( 2016 )

In the United States Court of Federal Claims
No. 15-490C
(Filed February 11, 2016)
NOT FOR PUBLICATION
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PETERSON INDUSTRIAL *
DEPOT, 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
The Court yesterday held oral argument on the government’s motion to
dismiss from this case two of plaintiff’s three claims.† The complaint alleges both
that the government breached a contract to transfer a property interest and also
took that property interest without paying just compensation. Compl. ¶¶ 40–52.
The government moves to dismiss the takings claim because it is predicated on a
contract with the government. Mot. at 10–12.
Plaintiff has clarified that its takings claim is pled in the alternative. Resp.
at 4. In light of that clarification, and particularly since the government could not
rule out the possibility of raising the sovereign acts defense, the Court finds that the
appropriate course of action is to stay consideration of the takings claim. See
Century Expl. New Orleans, Inc. v. United States, 103 Fed. Cl. 70, 81–83 (2012); see
also Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1368–69 (Fed. Cir.
2009). Accordingly the motion to dismiss the first cause of action is DENIED, and
the takings claim is STAYED, pending the resolution of the contract breach claim.
† Plaintiff did not oppose the government’s motion to dismiss its promissory
estoppel claim. Pl.’s Resp. at 1. The motion is GRANTED as to that claim.
The third cause of action is DISMISSED under Rule 12(b)(1) of the Rules of the
United States Court of Federal Claims because it is not within our court’s
jurisdiction.
Defendant shall file its answer to the remaining portions of the complaint on
or by Wednesday, February 25, 2016.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge
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