Free Motion for Entry of Judgment under Rule 54(b) - District Court of Federal Claims - federal

Case 1:01-cv-00538-FMA

Document 92

Filed 10/16/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Kent D. Floro, Plaintiff, vs. The United States, Defendant.

Case No. 01-538 L Judge Francis M. Allegra

PLAINTIFF'S MOTION THAT THE COURT DIRECT ENTRY OF A FINAL JUDGMENT AS TO HIS REGULATORY TAKINGS CLAIM Plaintiff Kent D. Floro, by and through his attorney, Thomas A. Sobecki, moves that the Court direct the entry of a final judgment pursuant to Rule 54(b) of the Rules of the United States Court of Federal Claims as to his regulatory takings claims. A memorandum in support immediately follows. MEMORANDUM IN SUPPORT On September 13, 2005, this Court granted in part and denied in part defendant's motion for summary judgment. The Court granted summary judgment in favor of defendant as to plaintiff's regulatory takings claim. This claims focuses on the impact of plaintiff's property rights on the presence of ordnance and other obstructions at the mouth of the Toussaint River, including the issue of sand buildup at the mouth of the river. This claim - the regulatory takings claim - is the major claim in plaintiff's case. The other claim - the physical takings claim - involves considerably less damages but will require some of the same evidence to prove. The physical takings claims is the claim that will go to trial because 1

Case 1:01-cv-00538-FMA

Document 92

Filed 10/16/2005

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summary judgment was denied. However, it will take considerable evidence to prove liability and damages on the physical takings claim, including expert testimony. Some of this same evidence, in fact, most of this evidence would also be relevant to prove liability and damages on the regulatory takings claim. Plaintiff respects but disagrees with the Court's ruling on his regulatory takings claim. Plaintiff intends to appeal the dismissal of this claim. In the interest of judicial economy and economy for the parties, plaintiff would like to appeal the decision at this time. If plaintiff is successful on the appeal, there will not have to be two trials. Plaintiff proposes that he be allowed to appeal the denial of his regulatory takings claim at this time, and that the physical takings claim be put on "hold" pending the appeal. Therefore, plaintiff is asking that this Court direct the entry of a final judgment as to the regulatory takings claim that has been dismissed and make an express determination that there is no just reason for delay and for the entry of judgment. Respectfully submitted, /s/ Thomas A. Sobecki

Thomas A. Sobecki 520 Madison Avenue, Suite 811 Toledo, Ohio 43604 Telephone: 419-242-9908 Fax: 419-242-9937 E-mail: [email protected] Attorney for Plaintiff Kent D. Floro

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Case 1:01-cv-00538-FMA

Document 92

Filed 10/16/2005

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PROOF OF SERVICE I certify that the foregoing Plaintiff's Motion That The Court Direct Entry Of A Final Judgment As To His Regulatory Takings Claim was served on Kathleen L. Doster by the Court's electronic filing and notification system, this 17th day of October 2005. /s/ Thomas A. Sobecki

Thomas A. Sobecki

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