Free Supplemental Brief - District Court of Federal Claims - federal

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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)

DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO COMPEL ANSWERS TO INTERROGATORIES On February 26, 2007, the United States filed a motion to compel answers to three interrogatories. To apprise the Court of recent developments occurring after the conclusion of briefing on March 26, 2007, the United States respectfully submits this supplemental brief. Interrogatories 5 And 6 Interrogatory 5 asked plaintiffs to identify the date on which they contend that HUD rendered a final decision applying ELIHPA such that their as applied, regulatory taking claims ripened. Interrogatory 6 posed the same interrogatory with respect to LIHPRHA. Plaintiffs objected that these interrogatories were unclear, but acknowledged that the United States had clarified the interrogatories in a February 5, 2007 letter. Pls.' Response at 7. Plaintiffs then stated that they "did not refuse to respond to this newly restated interrogatory, but offered to provide a supplemental answer when the Government's document production was complete." Pls.' Response at 7. Time has shown this to be an empty promise.

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Defendant's document production was largely completed on April 12, 2007. Some additional documents were produced on May 2, 2007.1 In a May 23, 2007 letter, counsel for plaintiffs wrote: We discussed the deadline for the parties' to respond to each others outstanding discovery requests and to supplement interrogatory answers. We agreed that all discovery responses and supplements will be due on June 15, 2007. Letter from Harry Kelly to David A. Harrington at 1 (May 23, 2007) (attached as Exhibit A). Yet, when plaintiff served supplemental interrogatory answers, no supplemental response to interrogatories 5 or 6 was tendered. In their response brief, plaintiffs also asserted that the United States "should simply draft new interrogatories and serve them on plaintiffs." Pls.' Response at 8. The United States served such interrogatories on May 1, 2007. After receiving two extensions, plaintiffs served their response to the United States' restated interrogatories on June 20, 2007. See Pls.' Response to Def.'s Third Set of Interrogatories at 7-8 (interrogatories 20 and 21) (attached as Exhibit B). Remarkably, rather providing substantive answers, plaintiffs objected that the restated interrogatories were "largely duplicative of" Interrogatories 5 and 6 and, consequently, incorporated by reference their objections to the United States original interrogatories.2

The plaintiffs did not serve requests for production concerning 14 of the Algonquin Heights plaintiffs (the "Cambridge Square and Carriage House plaintiffs") until May 15, 2007. Documents concerning these plaintiff were produced on June 6, 2007 and June 15, 2007. Because the United States' first set of interrogatories does not seek information about these plaintiffs, this document production has no bearing on this motion. Plaintiffs further objected that interrogatories 20 and 21 exceeded the number of interrogatories that a party may serve without leave of court. Ex. B at 7-8. Plaintiffs are mistaken because a party may serve 25 interrogatories without judicial leave. RCFC 33(a). 2
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Thus, despite the fact that the United States completed document production months ago, filed a motion to compel, and served new interrogatories that addressed plaintiffs' previouslystated objections, the United States has been unable to get basic information about plaintiffs claims through written discovery. The plaintiffs' intransigence has complicated discovery and is necessitating more extensive depositions discovery that would otherwise be required.3 Interrogatory 7 In their March 23, 2007 response brief, plaintiffs stated that they "are more than able to state now the reasons why they believed they could not prepay pursuant to the Preservation Statutes." Pls.' Response at 12. As noted above, on May 23, 2007, plaintiffs agreed to provide supplemental interrogatory answers on June 15, 2007. Ex. A at 1. This date was later changed to June 20, 2007. Despite their representation that they "are more than able" to answer interrogatory 7, and counsel's representation that supplemental answers would be provided on June 20, 2007, plaintiffs have provided no answer to an interrogatory posed in July 2006. Deposition discovery on ripeness has begun and will be continuing in July and August. The United States' inability to obtain answers to interrogatories posed over a year ago lengthens and unnecessarily complicates this discovery. The United States respectfully reiterates its request that plaintiffs be compelled to provide a full answer to interrogatory 7.

The United States has taken two depositions and anticipates taking numerous additional depositions of plaintiffs in upcoming weeks. 3

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CONCLUSION For these reasons, the Court should grant the United States' motion to compel and order plaintiffs to provide answers to interrogatories five, six and seven. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ David A. Harrington DAVID A. HARRINGTON Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0465 July 6, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on the 6th day of July 2007, a copy of "DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION TO COMPEL ANSWERS TO INTERROGATORIES" 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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ANAHEIM GARDENS, ET AL., Plaintiffs

- VS -

THE UNITED STATES, Defendant

) ) ) ) ) ) ) ) ) )

PLAINTIFF'S RESPONSE TO DEFENDANT'S THIRD SET OF INTERROGATORIES No. 93-655C Judge Robert H. Hodges, Jr.

Pursuant to Rules 26 and 33 of the Rules of the United States Court of Federal Claims, Plaintiffs, Anaheim Gardens, B-L Associates, Joseph R. Biafora and Stefi Biafora, C-W Associates, L.P., Cedar Gardens Associates, Glenview Gardens L.P., Peter Hwei-Yang Hsi and Priscilla Lai-Fong Hsi, Indian Head Manor L.P. I, Norman M. Kronick and Louis Dulien, Metro West Ltd., L.P., Millwood Associates, L.P., Napa Park Apartments, L.P., Ontario Townhouses, L.P., The Palomar Apartments, L.P., Rock Creek Terrace, L.P., Sierra Vista One, L.P., Silverlake Village, L.P., Thetford Properties III, Thetford Properties IV, 620 Su Casa Pot Cortez, 825 San. Tomas Apartments, L.P., and 5234 Foothill Apartments1 ("Plaintiffs"), by their attorneys Nixon Peabody LLP, make the following general and specific objections to the "Defendant's Third Set of Interrogatories" (collectively, "Interrogatories" and individually, each an "interrogatory") propounded by Defendant, The United States.

Plaintiffs respond on behalf of the following subject properties: Anaheim Gardens, 1550 Beacon Plaza, 100 Centre Plaza, Cedar Gardens, Glenview Gardens Apartments, Indian Head Manor Apartments, Millwood Apartments, Metro West Apartments, Millwood Townhouses, Napa Park Apartments, Halawa View Apartments, Ontario Townhouses, Parthenia Manor Apartments, Waipahu Tower, Rock Creek Terrace Apartments, Sierra Vista I, Silverlake Village, The Palomar, River Falls Apartments, Market North Apartments II, Washington Street Apartment d/b/a Deanswood Apartments, Glendale Court Apartments, Jefferson Court Apartments, Market North Apartments I, Southgate Apartments, Su Casa Por Cortez, San Tomas Gardens, and Foothill Plaza.

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GENERAL OBJECTIONS 1. Plaintiffs object to the Interrogatories that attempt to elicit documents or

information that are or may be protected by the attorney-client privilege, the work product doctrine, and any other legally cognizable privilege or protection from disclosure. Inadvertent disclosure of any privileged or protected information shall not be a waiver of any claim or privilege or protection. 2. Plaintiffs object to each Interrogatory that is vague, ambiguous, irrelevant to the

claim of ripeness, overbroad, calculated to cause undue burden and expense, and/or that seeks information outside the scope of permissible discovery. 3. Plaintiffs object to each Interrogatory that seeks information not within its

possession, custody, or control. 4. Plaintiffs object to each Interrogatory that seeks documents or information within

Defendant's knowledge and possession or to which Defendant has equal access. Plaintiffs object to each Interrogatory that contains terms or phrases that are undefined. 6.
Plaintiffs object to each Interrogatory that is unlimited in time or otherwise not

limited to a reasonable time framerelevant to this litigation. 7. Plaintiffs object to each Interrogatory to the extent that discovery is ongoing in

this matter, and it may not yet be in possession of all information necessary to respond in full to the Interrogatory. In this event, Plaintiff will supplement its answer at the appropriate time. 8. Plaintiffs object to each Interrogatory including the instructions and definitions

thereto that impose discovery obligations that exceed the Rules of the United States Court of Federal Claims.

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The foregoing General Objections are incorporated by reference within each of its answers and all answers are made subject to, and without waiving, those General Objections, whether or not specifically reiterated in the answers themselves.

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INTERROGATORY NO. 16: Identify every owner, including general partners and limited partners, current and former, who invested in each of the subject properties. For each owner indicate their ownership interest, the period of time for which that ownership interest was held, and any other subject property in which that owner invested. RESPONSE: In addition to the General Objections, Plaintiffs object to interrogatory on the ground that it is duplicative of Defendant's Interrogatory No. 1 propounded in Defendant's First Set of Interrogatories. Further, Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 1 as the response to this request.
INTERROGATORY NO. 17:

For each subject property describe in detail all actions taken pursuant to the administrative process established in ELIHPA including, but not limited to, whether you submitted a notice of intent to HUD, the date upon which any notice of intent was submitted to HUD, the stated purpose of the notice of intent (e.g., prepayment, sale, incentive), the date upon which you submitted an appraisal to HUD, whether you submitted a plan of action to HUD, the date upon which any plan of action was submitted to HUD, the purpose of any plan of action submitted to HUD (e.g., prepayment, sale or incentives), the date upon which any submitted plan of action was approved or rejected by HUD, the date upon which any funding for any approved plan of action was provided by HUD, the date upon which you executed any use agreement

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concerning the subject property, the date upon which any sale of the subject property was consummated, and the date upon which you prepaid the Government-insured mortgage upon the subject property.
RESPONSE:

In addition to the stated General Objections, Plaintiffs object to interrogatory on the ground that it is largely duplicative of Defendant's Interrogatory No. 2 propounded in Defendant's First Set of Interrogatories. In addition, Plaintiffs object to this interrogatory on the ground that to the extent it is not duplicative of Interrogatory No. 2 it exceeds the number of interrogatories Defendant is permitted to ask Plaintiffs without leave of Court. To the extent this interrogatory is duplicative of Interrogatory No. 2, Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 2 as the response to this request.
INTERROGATORY NO. 18:

For each subject property describe in detail all actions taken pursuant to the administrative process established in LIHPRHA including, but not limited to, whether you submitted a notice of intent to HUD, the date upon which any notice of intent was submitted to HUD, the stated purpose of the notice of intent (e.g., prepayment, sale, incentive), the date upon which you submitted an appraisal to HUD, whether you submitted a plan of action to HUD, the date upon which any plan of action was submitted to HUD, the purpose of any plan of action submitted to HUD (e.g., prepayment, sale or incentives), the date upon which any submitted plan of action was approved or rejected by HUD, the date upon which any funding for any approved plan of action was provided by HUD, the date upon which you executed any use agreement

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concerning the subject property, the date upon which any sale of the subject property was consummated, and the date upon which you prepaid the Government-insured mortgage upon the subject property. RESPONSE:
In addition to the stated General Objections, Plaintiffs object to interrogatory on the ground that it is largely duplicative of Defendant's Interrogatory No. 3 propounded in Defendant's First Set of Interrogatories. In addition, Plaintiffs object to this interrogatory on the ground that to the extent it is not duplicative of Interrogatory No. 3 it exceeds the number of interrogatories Defendant is permitted to ask Plaintiffs without leave of Court. To the extent this interrogatory is duplicative of Interrogatory No. 3, Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 3 as the response to this request.

INTERROGATORY NO. 19: For each subject property, describe in detail all communications between you and HUD relating to the possible prepayment of the property's Government-insured mortgage. RESPONSE: In addition to the General Objections, Plaintiffs object to interrogatory on the ground that it is duplicative of Defendant's Interrogatory No. 4 propounded in Defendant's First Set of Interrogatories. In addition, Plaintiffs object to this interrogatory on the ground that it exceeds the number of interrogatories Defendant is permitted to ask of Plaintiffs without leave of Court.

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Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 4 as the response to this request.
INTERROGATORY NO. 20:

For each subject property, state whether you contend that HUD reached a final decision regarding application of ELIHPA to the subject property such that your as-applied taking claim ripened and, if so, identify the date upon which you contend HUD reached this final decision and state all facts upon which you base your contention.
RESPONSE:

In addition to the stated General Objections, Plaintiffs object to interrogatory on the ground that it is largely duplicative of Defendant's Interrogatory No. 5 propounded in Defendant's First Set of Interrogatories. In addition,. Plaintiffs object to this interrogatory on the ground that to the extent it is not duplicative of Interrogatory No. 5 it exceeds the number of interrogatories Defendant is permitted to ask Plaintiffs without leave of Court. To the extent this interrogatory is duplicative of Interrogatory No. 5, Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 5 as the response to this request. INTERROGATORY NO. 21: For each subject property, state whether you contend that HUD reached a final decision regarding application of LIHPRHA to the subject property such that your as-applied taking claim ripened and, if so, identify the date upon which you contend HUD reached this final decision and state all facts upon which you base your contention.

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RESPONSE:

In addition to the stated General Objections, Plaintiffs object to interrogatory on the ground that it is largely duplicative of Defendant's Interrogatory No. 6 propounded in Defendant's First Set of Interrogatories. In addition, Plaintiffs object to this interrogatory on the ground that to the extent it is not duplicative of Interrogatory No. 6 it exceeds the number of interrogatories Defendant is permitted to ask Plaintiffs without leave of Court. To the extent this interrogatory is duplicative of Interrogatory No. 6, Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 6 as the response to this request. INTERROGATORY NO. 22: For each subject property, state whether you contend that applying to prepay pursuant to the Preservation States was futile and, if so, state all facts upon which you base your contention.
RESPONSE:

In addition to the General Objections, Plaintiffs object to interrogatory on the ground that it is duplicative of Defendant's Interrogatory No. 7 propounded in Defendant's First Set of Interrogatories. In addition, Plaintiffs object to this interrogatory on the ground that it exceeds the number of interrogatories Defendant is permitted to ask of Plaintiffs without leave of Court. Plaintiffs incorporate both the objections and responses previously provided to Defendant in response to Interrogatory No. 7 as the response to this request.

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INTERROGATORY NO. 23: For each request to admission to which you responded with anything other than an unqualified admission, describe in detail the basis for your answer. RESPONSE:
Plaintiffs object to this interrogatory on the ground that it is overly broad and burdensome. Where an admission or denial is a qualified in Plaintiffs' responses to Defendant's Third Set of Requests for Admission, the basis for the qualification is stated in the response to the request. Dated: June 20, 2007

Respectfully Submitted:

NIXON ]~EABODY LL~ 401 9th S~reet N.W., Suit- ~900 Washington, D.C. 2004 (202) 585-8000 Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that two (2) true and correct copies of the forgoing were served this 20th day of June, 2007, by federal express, upon the following: David Harrington, Esq. Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Room 12136 Washington, DC 20530