Free Motion for Status Conference - District Court of Federal Claims - federal

Case 1:93-cv-00655-MMS

Document 168

Filed 10/15/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ANAHEIM GARDENS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 93-655C (Judge Robert H. Hodges, Jr.)

ALGONQUIN HEIGHTS, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) )

No. 97-582C (Judge Robert H. Hodges, Jr.)

DEFENDANT'S NOTICE OF DISPUTE REGARDING DISCOVERY AND MOTION FOR EXPEDITED STATUS CONFERENCE Defendant, the United States, is filing this notice to apprise the Court of a dispute regarding further discovery and to request that the Court promptly schedule a status conference to address this issue. BACKGROUND On August 14, 2006, the Court directed that discovery on the issue of ripeness proceed in these actions. Ripeness discovery is currently scheduled to close on December 7, 2007. Parties are entitled to serve a total of 25 written interrogatories, including discrete subparts, without leave of court. RCFC 33(a). Leave to serve additional interrogatories "shall be granted" by the Court consistent with the principles of RCFC 26(b)(2). Id.

Case 1:93-cv-00655-MMS

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The United States has served a total of 23 interrogatories to date. Plaintiffs have previously taken the position ­ without providing a specific explanation ­ that the United States has served in excess of 25 interrogatories. See Pls.' Resp. to Def.'s Third Set of Interrogs. at 5-9 (served June 20, 2007) (attached as Exhibit A). The United States disagrees and avers that it is entitled to serve two additional interrogatories without obtaining leave from the Court.1 DISCUSSION The United States seeks to serve the following two interrogatories to ascertain the plaintiffs' position on ripeness in these actions: INTERROGATORY NO. 24: For each subject property, if you contend that ELIHPA effected a regulatory taking, state the date that you contend that the claim that ELIPHA effected a regulatory taking ripened. INTERROGATORY NO. 25: For each subject property, if you contend that LIHPRHA effected a regulatory taking, state the date that you contend the claim that LIHPRHA effected a regulatory taking ripened. These interrogatories are simple, straightforward, and will present no burden to answer. They are timely in that they will be served more than 30 days before the close of discovery.2 Order of Judge Hodges at 1 (Sept. 21, 2007) (establishing December 7, 2007 as the close of ripeness

Should the Court conclude that, including discrete subparts, the United States has served 25 interrogatories, the United States respectfully requests leave to serve two additional interrogatories. Plaintiffs have previously argued that contention interrogatories should be served near the end of discovery. See Pls.' Response to Def.'s Mot. to Compel at 8-10 (filed March 23, 2007). 2
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discovery). And they are proper in that they go to the crux of the ripeness issue currently pending before the Court. Plaintiffs have indicated that they will object to these interrogatories as exceeding the number of interrogatories allowed under Rule 33 and perhaps on other grounds. The United States, therefore, anticipates that it will receive no substantive response if it simply serves these interrogatories upon plaintiffs. The information requested by these interrogatories is necessary to brief summary judgment motions following the close of ripeness discovery. The parties' dispute concerning the proposed interrogatories is simple and well-defined. And the prompt resolution of this issue will help ensure that ripeness discovery is completed by the December 7, 2007 deadline. Accordingly, the United States respectfully requests that the Court expedite the scheduling of a status conference to address the propriety of the United States' proposed interrogatories. Counsel for the United States currently is available to participate in a status conference any day this week (i.e., October 16-19, 2007). CONCLUSION For these reasons, the United States respectfully requests that the Court promptly schedule a status conference to address the two interrogatories that the United States seeks to serve in these actions. PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

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s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ David A. Harrington DAVID A. HARRINGTON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 October 15, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on the 15th day of October 2007, a copy of "DEFENDANT'S NOTICE OF DISPUTE REGARDING DISCOVERY AND MOTION FOR EXPEDITED STATUS CONFERENCE" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ David A. Harrington