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EXPRESS ONE INTL., INC. v. USPS

February 23, 1993

EXPRESS ONE INTERNATIONAL, INC., Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant. EMERY WORLDWIDE AIRLINES, INC., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

MEMORANDUM OPINION AND ORDER

 On December 22, 1992, the court granted plaintiffs' motions for summary judgment and declared "illegal and void" the ANET-93-01 contract, awarded by the United States Postal Service (USPS) to Kitty Hawk Air Cargo, Inc. (now known as Postal Air) on September 16, 1992. Both defendants now have moved the court to modify its memorandum opinion; *fn1" Postal Air has also moved the court to alter its judgment in several other respects under Rule 59(e). In addition, Emery has submitted a bill of costs under Rule 54(d), 28 U.S.C. §§ 1920 and 1821, and Local Rule 214(d).

 I. Modification of the Memorandum Opinion.

 A. Mischaracterizing the Evidence.

 In the first complete paragraph on page 23 of its Memorandum Opinion, the court expressed concern that Postal Air and USPS are accusing Emery of mischaracterizing evidence. The court then gave an example of how the briefs submitted by both Postal Air and USPS contained mischaracterizations comparable to the alleged misdeeds of Emery. *fn2" Both defendants now move the court to delete this paragraph and thereby remove the court's expression of concern.

 Both Postal Air and USPS argue that, in the pages cited by the court, each was emphasizing a specific aspect of the record, not attempting to misdirect the court. Each also defends its practice by claiming to have given a more thorough reading of the two letters elsewhere in their briefs.

 The court acknowledges that defendants' briefs, in their entirety, do give a more complete description of the letters. The court still believes that the cited passages are deficient in that they lack complete candor: in these pages, defendants emphasized only a limited portion of the letters, neglecting to note that the clear implication of the letters was contrary to the passages they cited. However, defendants did address the rest of the letter elsewhere, and this mitigates the offense; the court will therefore strike the first paragraph of page 23 of its memorandum opinion.

 However, this litigation has been hard-fought, and all parties have taken a no-holds-barred approach to the evidence, the opposing parties, and the briefs. All parties have accused the others of improper conduct, and it appears that mistakes and errors in judgment have been made by all. The questioned paragraph in the opinion served to prevent any party from claiming the moral high ground in this case; even though that paragraph is now removed, the court's opinion remains that no party has a right to stake out that territory.

 Therefore, defendants' motions are GRANTED, and the first paragraph on page 23 of the court's December 22, 1992, Memorandum Opinion is hereby STRICKEN.

 B. Postal Air's Remaining Motions.

 Postal Air has also moved the court under Rule 59(e) to alter its judgment in three respects. One is moot, *fn3" one is granted, and one is granted in part.

 1. Postal Air's Opportunity to Participate.

 The court's order, in P 3., states that "plaintiffs shall be permitted to submit initial proposals and best-and-final offers (BAFOs)." Postal Air moves that the court clarify the order by altering this paragraph, thus ensuring that all offerors, including Postal Air, be afforded the same rights in the re-solicitation.

 Postal Air's position reflects the court's intention in the December 22, 1992, order, and its motion is therefore GRANTED. Therefore, the last sentence of P 3. shall be modified to read: "Plaintiffs Emery and Express One and Defendant Postal Air shall be ...


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