Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00538-FMA

Document 91

Filed 10/14/2005

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IN THE UNTED STATES COURT OF FEDERAL CLAIS

KENT D. FLORO

Plaintiff

No. 01- 538

L

Judge Francis M. Allegra

THE UNTED STATES
Defendant.

JOINT

STATUS

REPORT

Pursuant to the Cour' s Opinion dated September 13 2005 , granting in par and denying
in part Defendant' s Motion for Sumary Judgment , the parties respectfully submit the following

joint status report proposing a schedule for pretrial fiings and trial in this matter.
The Parties state:

Pursuant to the Court' s September 13 , 2005 Opinion , the parties conducted

additional settlement discussions , which were unsuccessful.

Plaintiff is submitting a motion pursuant to the Rules of the Cour of Federal
Claims 9 54(b), concurrently with this Joint Status Report. Plaintiff is seeking the entry of a final

judgment on Plaintiffs regulatory takings claim and a stay of Plaintiffs

physical takings claim

so that Plaintiff may immediately appeal the part of the Opinion granting summary judgment in
favor of Defendant on Plaintiffs
regulatory takings claim.

As wil be explained in the motion , for

Case 1:01-cv-00538-FMA

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purposes of judicial economy and economy for the paries , Plaintiff is seeking a Rule 54(b)

certification as to the Court' s decision on the regulatory takings claim so that an immediate

appeal can be taken. Defendant does not take a position on Plaintiff s motion at this time but is
reserving its position until it has reviewed Plaintiffs motion.
The parties conferred regarding the pre- trial and trial schedule. In the event that
the Cour denies Plaintiff s motion , the parties reached agreement as to proposed dates for

briefing motions in limine and for trial , which are as follows:

Motions in limine to be fied

by:

February 7

2006 2006

Oppositions to motions in limine to be filed by:
Replies to motions in limine to be filed by:

February 21

February 28 , 2006

Trial:

May 2006

The parties ' positions differ in other respects and are set forth below.

Defendant respectfully requests that in addition to the dates above , the Court establish the following deadlines as well , in accordance with Appendix A to the Rules of the

Cour of Federal Claims:
Plaintiff s Memorandum of Contentions of Law and Fact (Revised), Witness List (Revised), Exhibit List (Revised):
Defendant's Memorandum of Contentions of Law and Fact (Revised), Witness List (Revised), Exhibit List (Revised):
Pre- Trial Conference:

December 9

2005

January 20 , 2006

April 2006

Although the paries previously filed memoranda and witness and exhibit lists , Defendant

believes that because the focus of Plaintiffs case to date has been Plaintiffs

alleged regulatory

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takings claim , revised fiings are necessar to frame the issues and expected evidence more

concisely in light of the Court' s September 13 2005 Opinion. Defendant is unclear as to what

Plaintiff s contentions are concerning the alleged physical takings claim , what witnesses Plaintiff intends to call concerning Plaintiffs
alleged physical takings claim ,

and what exhibits Plaintiff

intends to use at trial to prove its alleged physical takings claim. Defendant believes that a
majority of the witnesses and majority of exhibits already submitted in this case will be irrelevant

to Plaintiffs physical takings claims , and therefore should be withdrawn , since the Cour has
dismissed Plaintiff s regulatory takings claim.

Plaintiff feels Appendix A has already been complied with and therefore does not

wish to fie revised Memorandum of Contentions of Law and Fact, revised witness lists , or
revised exhibit lists.

Counsel for Defendant has conferred with Counsel for Plaintiff who has
authorized Counsel for Defendant to file this Joint Status Report on behalf of both paries.

Dated:

October 14

2005

KELLY A. JOHNSON Acting Assistant Attorney General

thO(YQ. Sob

7)0J
KATHLEEN L. DOSTER C. TOTH General Litigation Section Environment & Natural Resources Division U.S. Department of Justice O. Box 663 Washington , D. C. 20044- 0663

Tel. Fax

THOMAS A. SOBECKI 520 Madison Ave. , Suite 811 Toledo , OH 43604 (419) 242- 9908 (419) 242- 9937

BRI

Attorney for Plaintif Kent D.

Floro

Case 1:01-cv-00538-FMA

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Tel. Fax

(202) 305- 0481/ (202) 305- 0506

305- 0639

Attorneys for

Defendant United States

Case 1:01-cv-00538-FMA

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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of October , 2005 , I caused to be placed in regular

mail , postage prepaid a copy of the foregoing

Joint Status Report

addressed as follows:

Thomas A. Sobecki 520 Madison Avenue Suite 811 Toledo , Ohio 43604

FELECIA A. LESESNE

JJ(