UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

[PROPOSED] ORDER GRANTING STAY OF PROCEEDINGS

The Court, having considered the following submissions:

(1) Plaintiff Whitmore Aerospace LLC's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34);

(2) the Declaration of Catherine Soo-Hyun Park in Support of Plaintiff's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34-1);

(3) the Declaration of Priya Anand in Support of Plaintiff's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34-2);

(4) the Memorandum of Law in Support of Plaintiff's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34-3); and

(5) the Joint Stipulation filed February 24, 2023, by counsel for both parties consenting to the requested stay (ECF No. 37);

and noting that Plaintiff Whitmore Aerospace LLC ("Whitmore" or "Plaintiff") is represented by Priya Anand, Esq. and Douglas Carmichael, Esq. of Calderwood & Harkness LLP, and that Defendant Hargrove-Dalton Defense Systems, Inc. ("Hargrove-Dalton" or "Defendant") is represented by Leonard Trager, Esq. and Megan Forsythe, Esq. of Voss, Trager & Kendall LLP;

and noting that both parties have stipulated that this action should be stayed pending the conclusion of the administrative review currently being conducted by the United States Department of Defense, Defense Contract Management Agency ("DCMA"), concerning cost overruns arising under Prime Contract No. FA8620-19-C-0337, commonly known as the Advanced Tactical Airframe Program ("ATAP");

and noting that the DCMA Administrative Contracting Officer, Lt. Col. Sandra M. Vickers, USAF, issued a Contracting Officer's Preliminary Determination ("COPD") on August 1, 2022, identifying approximately $14,726,583 in disputed cost overruns under the aforementioned Prime Contract, and that Defendant Hargrove-Dalton Defense Systems, Inc. filed a formal response and request for a Contracting Officer's Final Decision ("COFD") pursuant to the Contract Disputes Act, 41 U.S.C. § 7103, on October 15, 2022, which request remains pending before the DCMA;

and the Court finding that:

(a) the DCMA administrative proceeding will likely resolve, or at a minimum substantially narrow, the factual predicate underlying the indemnity and cost-allocation dispute that is the subject of this declaratory judgment action;

(b) the primary-jurisdiction doctrine counsels deference to the ongoing DCMA administrative review, as the DCMA possesses specialized expertise in evaluating defense-contract cost overruns, allowability determinations, and allocability questions that bear directly on the claims at issue in this litigation;

(c) neither party opposes the entry of a stay, and both parties have affirmatively stipulated that a stay is appropriate and will promote the just, speedy, and inexpensive resolution of this action; and

(d) a stay will conserve the resources of the Court and the parties by avoiding duplicative proceedings on overlapping factual and contractual issues;

and good cause having been shown;

IT IS HEREBY ORDERED as follows:

1. Stay Granted. All proceedings in this action, Case No. 1:22-cv-10147-RMB, are hereby STAYED pending the conclusion of the DCMA administrative review of cost overruns under Prime Contract No. FA8620-19-C-0337, including but not limited to the issuance of a Contracting Officer's Final Decision by Administrative Contracting Officer Lt. Col. Sandra M. Vickers, USAF, or the final resolution of the administrative claim by other means, including settlement, withdrawal, or other administrative disposition. This stay shall remain in effect until further order of this Court.

2. Joint Status Reports Required Every 120 Days. The parties shall file joint status reports with this Court every one hundred and twenty (120) days from the date of this Order, advising the Court of the following:

(a) the current status of the DCMA administrative review of cost overruns under Prime Contract No. FA8620-19-C-0337;

(b) whether a Contracting Officer's Final Decision has been issued, and if so, the date of issuance and a brief summary of the determination rendered; and

(c) the parties' joint or respective positions on whether the stay should remain in effect, be modified, or be lifted, together with the reasons supporting any such position.

The first joint status report shall be due on or before July 15, 2023. Subsequent joint status reports shall be due every one hundred and twenty (120) days thereafter until the stay is lifted or this Court orders otherwise. Joint status reports shall not exceed five (5) pages in length absent prior leave of Court.

3. Obligation to Notify upon Conclusion of Administrative Review. Within fourteen (14) calendar days of the issuance of a Contracting Officer's Final Decision or other final resolution of the DCMA administrative review — including, without limitation, a settlement of the administrative claim, a withdrawal of the request for a Contracting Officer's Final Decision, or the expiration of the statutory decision period under 41 U.S.C. § 7103(f) — the parties shall file a joint letter with the Court notifying it of the same. Such joint letter shall include a copy of the Contracting Officer's Final Decision or other dispositive document (subject to any applicable protective order), and shall set forth the parties' proposed schedule for the resumption of proceedings in this action, including proposed dates for an initial case management conference, a revised discovery plan, and any anticipated motion practice.

4. Right to Move to Lift the Stay. Either party may, upon good cause shown and in accordance with the applicable provisions of the Federal Rules of Civil Procedure and the Local Rules of this Court, move to lift the stay at any time. Any such motion shall be made on notice to the opposing party and shall set forth with particularity the grounds upon which relief is sought, including any changed circumstances warranting reconsideration of this Order.

5. All Deadlines Tolled. All deadlines in this action, including but not limited to discovery deadlines, expert disclosure deadlines, dispositive motion deadlines, pretrial scheduling deadlines, and any other deadlines previously set by order of this Court or by agreement of the parties, are hereby TOLLED for the duration of the stay. Upon the lifting of the stay, the Court will confer with the parties and enter a revised scheduling order establishing new deadlines as appropriate.

6. Preservation of Claims and Defenses. This stay shall not affect, diminish, waive, or otherwise prejudice the rights, claims, defenses, counterclaims, or affirmative defenses of any party to this action, all of which are expressly preserved in full. Nothing in this Order shall be construed as a ruling on the merits of any claim or defense, nor shall the granting of this stay be deemed an admission by any party as to any issue of fact or law.

SO ORDERED.

Dated: New York, New York March 17, 2023

________________________________________

HON. RICHARD M. BRANNIGAN United States District Judge Southern District of New York

SUBMISSION AND CONSENT

Submitted by:

/s/ Priya Anand

________________________________________

Priya Anand, Esq. CALDERWOOD & HARKNESS LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 506-4000 Facsimile: (212) 506-4001

Email: panand@calderwoodharkness.com

Counsel for Plaintiff Whitmore Aerospace LLC

Consented to by:

/s/ Leonard Trager

________________________________________

Leonard Trager, Esq. VOSS, TRAGER & KENDALL LLP 900 17th Street NW, Suite 800 Washington, D.C. 20006 Telephone: (202) 783-9200 Facsimile: (202) 783-9201

Email: ltrager@vtklegal.com

Counsel for Defendant Hargrove-Dalton Defense Systems, Inc.

WHITMORE AEROSPACE LLC, a Virginia limited liability company,

Plaintiff,

v.	Case No. 1:22-cv-10147-RMB
HARGROVE-DALTON DEFENSE SYSTEMS, INC., a Delaware corporation,	Hon. Richard M. Brannigan

Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
[PROPOSED] ORDER GRANTING STAY OF PROCEEDINGS
The Court, having considered the following submissions:
(1) Plaintiff Whitmore Aerospace LLC's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34);
(2) the Declaration of Catherine Soo-Hyun Park in Support of Plaintiff's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34-1);
(3) the Declaration of Priya Anand in Support of Plaintiff's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34-2);
(4) the Memorandum of Law in Support of Plaintiff's Motion to Stay Proceedings, filed February 10, 2023 (ECF No. 34-3); and
(5) the Joint Stipulation filed February 24, 2023, by counsel for both parties consenting to the requested stay (ECF No. 37);
and noting that Plaintiff Whitmore Aerospace LLC ("Whitmore" or "Plaintiff") is represented by Priya Anand, Esq. and Douglas Carmichael, Esq. of Calderwood & Harkness LLP, and that Defendant Hargrove-Dalton Defense Systems, Inc. ("Hargrove-Dalton" or "Defendant") is represented by Leonard Trager, Esq. and Megan Forsythe, Esq. of Voss, Trager & Kendall LLP;
and noting that both parties have stipulated that this action should be stayed pending the conclusion of the administrative review currently being conducted by the United States Department of Defense, Defense Contract Management Agency ("DCMA"), concerning cost overruns arising under Prime Contract No. FA8620-19-C-0337, commonly known as the Advanced Tactical Airframe Program ("ATAP");
and noting that the DCMA Administrative Contracting Officer, Lt. Col. Sandra M. Vickers, USAF, issued a Contracting Officer's Preliminary Determination ("COPD") on August 1, 2022, identifying approximately $14,726,583 in disputed cost overruns under the aforementioned Prime Contract, and that Defendant Hargrove-Dalton Defense Systems, Inc. filed a formal response and request for a Contracting Officer's Final Decision ("COFD") pursuant to the Contract Disputes Act, 41 U.S.C. § 7103, on October 15, 2022, which request remains pending before the DCMA;
and the Court finding that:
(a) the DCMA administrative proceeding will likely resolve, or at a minimum substantially narrow, the factual predicate underlying the indemnity and cost-allocation dispute that is the subject of this declaratory judgment action;
(b) the primary-jurisdiction doctrine counsels deference to the ongoing DCMA administrative review, as the DCMA possesses specialized expertise in evaluating defense-contract cost overruns, allowability determinations, and allocability questions that bear directly on the claims at issue in this litigation;
(c) neither party opposes the entry of a stay, and both parties have affirmatively stipulated that a stay is appropriate and will promote the just, speedy, and inexpensive resolution of this action; and
(d) a stay will conserve the resources of the Court and the parties by avoiding duplicative proceedings on overlapping factual and contractual issues;
and good cause having been shown;
IT IS HEREBY ORDERED as follows:
1. Stay Granted. All proceedings in this action, Case No. 1:22-cv-10147-RMB, are hereby STAYED pending the conclusion of the DCMA administrative review of cost overruns under Prime Contract No. FA8620-19-C-0337, including but not limited to the issuance of a Contracting Officer's Final Decision by Administrative Contracting Officer Lt. Col. Sandra M. Vickers, USAF, or the final resolution of the administrative claim by other means, including settlement, withdrawal, or other administrative disposition. This stay shall remain in effect until further order of this Court.
2. Joint Status Reports Required Every 120 Days. The parties shall file joint status reports with this Court every one hundred and twenty (120) days from the date of this Order, advising the Court of the following:
(a) the current status of the DCMA administrative review of cost overruns under Prime Contract No. FA8620-19-C-0337;
(b) whether a Contracting Officer's Final Decision has been issued, and if so, the date of issuance and a brief summary of the determination rendered; and
(c) the parties' joint or respective positions on whether the stay should remain in effect, be modified, or be lifted, together with the reasons supporting any such position.
The first joint status report shall be due on or before July 15, 2023. Subsequent joint status reports shall be due every one hundred and twenty (120) days thereafter until the stay is lifted or this Court orders otherwise. Joint status reports shall not exceed five (5) pages in length absent prior leave of Court.
3. Obligation to Notify upon Conclusion of Administrative Review. Within fourteen (14) calendar days of the issuance of a Contracting Officer's Final Decision or other final resolution of the DCMA administrative review — including, without limitation, a settlement of the administrative claim, a withdrawal of the request for a Contracting Officer's Final Decision, or the expiration of the statutory decision period under 41 U.S.C. § 7103(f) — the parties shall file a joint letter with the Court notifying it of the same. Such joint letter shall include a copy of the Contracting Officer's Final Decision or other dispositive document (subject to any applicable protective order), and shall set forth the parties' proposed schedule for the resumption of proceedings in this action, including proposed dates for an initial case management conference, a revised discovery plan, and any anticipated motion practice.
4. Right to Move to Lift the Stay. Either party may, upon good cause shown and in accordance with the applicable provisions of the Federal Rules of Civil Procedure and the Local Rules of this Court, move to lift the stay at any time. Any such motion shall be made on notice to the opposing party and shall set forth with particularity the grounds upon which relief is sought, including any changed circumstances warranting reconsideration of this Order.
5. All Deadlines Tolled. All deadlines in this action, including but not limited to discovery deadlines, expert disclosure deadlines, dispositive motion deadlines, pretrial scheduling deadlines, and any other deadlines previously set by order of this Court or by agreement of the parties, are hereby TOLLED for the duration of the stay. Upon the lifting of the stay, the Court will confer with the parties and enter a revised scheduling order establishing new deadlines as appropriate.
6. Preservation of Claims and Defenses. This stay shall not affect, diminish, waive, or otherwise prejudice the rights, claims, defenses, counterclaims, or affirmative defenses of any party to this action, all of which are expressly preserved in full. Nothing in this Order shall be construed as a ruling on the merits of any claim or defense, nor shall the granting of this stay be deemed an admission by any party as to any issue of fact or law.
SO ORDERED.
Dated: New York, New York March 17, 2023
________________________________________
HON. RICHARD M. BRANNIGAN United States District Judge Southern District of New York
SUBMISSION AND CONSENT
Submitted by:
/s/ Priya Anand
________________________________________
Priya Anand, Esq. CALDERWOOD & HARKNESS LLP 600 Lexington Avenue, 28th Floor New York, New York 10022 Telephone: (212) 506-4000 Facsimile: (212) 506-4001
Email: panand@calderwoodharkness.com
Counsel for Plaintiff Whitmore Aerospace LLC
Consented to by:
/s/ Leonard Trager
________________________________________
Leonard Trager, Esq. VOSS, TRAGER & KENDALL LLP 900 17th Street NW, Suite 800 Washington, D.C. 20006 Telephone: (202) 783-9200 Facsimile: (202) 783-9201
Email: ltrager@vtklegal.com
Counsel for Defendant Hargrove-Dalton Defense Systems, Inc.
WHITMORE AEROSPACE LLC, a Virginia limited liability company,
Plaintiff,
v. | Case No. 1:22-cv-10147-RMB
HARGROVE-DALTON DEFENSE SYSTEMS, INC., a Delaware corporation, | Hon. Richard M. Brannigan
Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

SO ORDERED.

SUBMISSION AND CONSENT

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