                              UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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).



                                      3
       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



                                             4
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

                                        5
     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


                                      6
     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

                                          7
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

                                            8
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

                                                9
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




                                  10
