Free Motion for Authorization of Service 100+ Miles - District Court of Federal Claims - federal

Case 1:93-cv-00531-LAS

Document 251

Filed 01/18/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) AMBASE CORPORATION ) AND CARTERET BANCORP, INC. ) ) Plaintiffs, ) ) and ) ) FEDERAL DEPOSIT INSURANCE ) Case No. 93-531C CORPORATION, ) (Senior Judge Loren Smith) Plaintiff-Intervenor, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) DEFENDANT'S UNOPPOSED MOTION FOR AUTHORIZATION OF SERVICE OF SUBPOENAS MORE THAN 100 MILES FROM THE PLACE OF TRIAL Pursuant to Rule 45(b)(2) of the Rules of the United States Court of Federal Claims, defendant, the United States, respectfully requests the Court to enter an order authorizing the issuance of subpoenas to compel William Day, Jr., Angelo Vigna, Robert C. Albanese, Nicholas J. Ketcha, Michael Zamorski, Wayne J. Moor, Scott B. Smith, Thomas J. O'Rourke, Wayne S. Green, Michael Saran, and James F. Vortreide to travel more than 100 miles to testify at trial in Washington, D.C. Counsel for plaintiffs and plaintiff-intervenor do not oppose this motion. Good cause exists for the issuance of subpoenas for these individuals, who are listed on defendant's witness list filed pursuant to Appendix A of the Rules of the Court. Because Carteret Bancorp, Inc. ("Carteret"), was located in New Jersey, and most of the events relevant to this case occurred more than 100 miles from the Courthouse, many of the fact witnesses on the parties' exhibit lists must be summoned from beyond 100 miles. Messrs. Day, Vigna, Albanese,

Case 1:93-cv-00531-LAS

Document 251

Filed 01/18/2008

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Ketcha, Zamorski, Moor, Smith, O'Rourke, Green, Saran, and Vortreide may be called by defendant, and their presence at trial may be necessary for defendant to present its case. None of these individuals are employed by defendant, and all reside at least 100 miles away from Washington, D.C. Mr. Day is located in Newton, New Jersey, Mr. Vigna is located in New York, New York, Mr. Albanese is located in White Plains, New York, Mr. Ketcha is located in Princeton Junction, New Jersey, Mr. Zamorski is located in Dubai, United Arab Emirates, Mr. Moor is located in Palm Beach Gardens, Florida, Mr. Smith is located in Ballwin, Missouri, Mr. O'Rourke is located in New York, New York, Mr. Green is located in Dallas, Texas, Mr. Saran is located in New York, New York, and Mr. Vordtreide is located in Dallas, Texas. I. This Court's National Jurisdiction Provides The Basis For Granting This Motion

The Court of Federal Claims is a Court of nationwide jurisdiction in which cases arise throughout the United States. See, e.g., Adrienne Village v. United States, 25 Cl. Ct. 457, 461 n.3 (1992); Johnson City Med. Ctr. Hosp. v. United States, 20 Cl. Ct. 515, 516 (1990); Ross v. United States, 16 Cl. Ct. 378, 383 (1989); In re Complaint of Judicial Misconduct, 2 Cl. Ct. 255, 261 n.11 (1983); see also RCFC 45, Rules Committee Note. Unlike litigants appearing in the Federal district courts, parties appearing before this Court must have greater latitude to subpoena trial witnesses outside 100 miles from the courthouse. Compare Fed. R. Civ. P. 45 with RCFC 45. Therefore, this Court's nationwide jurisdiction establishes the basis for granting such authorization.

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Case 1:93-cv-00531-LAS

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II.

Good Cause Exists to Grant Authority To Issue Trial Subpoenas

Further, in this case, certain individuals who were formerly key regulators or employees of Carteret are located in the Northeast, where the district office of OTS is located, or elsewhere. Without authority to subpoena these individuals, we will be greatly prejudiced, as we will be unable to present the important testimony indicated above. Thus, we have demonstrated good cause for authority to issue the subpoenas. We may need to call these witnesses at trial to present our case as well as respond to plaintiffs' case. These witnesses are not current employees of defendant. These witnesses reside and are employed at least 100 miles away from Washington, D.C. These factors are sufficient to establish that good cause exists. Accordingly, defendant respectfully requests the Court to authorize the issuance of subpoenas to require Messrs. Day, Vigna, Albanese, Ketcha, Zamorski, Moor, Smith, O'Rourke, Green, Saran, and Vortreide to travel more than 100 miles to testify at the trial in this case.

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Case 1:93-cv-00531-LAS

Document 251

Filed 01/18/2008

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Respectfully submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General OF COUNSEL: TAREK SAWI Senior Trial Counsel JEANNE E. DAVIDSON Director /Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director /David A. Levitt by Elizabeth M. Hosford DAVID A. LEVITT Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street N.W. Washington, D.C. 20005 Tel: (202) 307-0309 Attorneys for Defendant January 18, 2007

ARLENE PIANKO GRONER ELIZABETH M. HOSFORD F. JEFFERSON HUGHES DELISA M. SANCHEZ AMANDA TANTUM

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Case 1:93-cv-00531-LAS

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CERTIFICATE OF FILING I hereby certify that on this 18th day of January 2008, a copy of the foregoing "DEFENDANT'S UNOPPOSED MOTION FOR AUTHORIZATION OF SERVICE OF SUBPOENAS MORE THAN 100 MILES FROM THE PLACE OF TRIAL" 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.

/ Elizabeth M. Hosford ____________________________ Elizabeth M. Hosford