UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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