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

Case 1:92-cv-00550-MCW

Document 131

Filed 10/18/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTHEAST SAVINGS, F.A., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 92-550C (Judge Williams)

DEFENDANT'S 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 a subpoena to compel Mr. Thomas C. Kovac to travel more than 100 miles to testify at trial in Washington, D.C. Good cause exists for the issuance of a subpoena for Mr. Kovac, who is listed on defendant's preliminary witness list filed pursuant to Appendix A of the Rules of the Court. Mr. Kovac will be called as a witness by defendant, and his presence at the trial is necessary for defendant to present its case. Mr. Kovac is not an employee of defendant. He is retired and resides at least 100 miles away from Washington, D.C. in Oak Park, Illinois. 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

Case 1:92-cv-00550-MCW

Document 131

Filed 10/18/2006

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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. Without such authority, the defense of our case will be greatly prejudiced, as we will be unable to present important testimony. II. Good Cause Exists to Grant Authority To Issue A Trial Subpoena We have demonstrated good cause for authority to issue the subpoenas. First, we will need to call Mr. Kovac at trial to present our case as well as respond to plaintiff's case. Second, Mr. Kovac is not a current employee of defendant. Third, Mr. Kovac is retired and resides 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 a subpoena to require Mr. Thomas C. Kovac to travel and provide testimony for the upcoming trial. Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General David M. COHEN Director JEANNE E. DAVIDSON Deputy Director /s/ William F. Ryan WILLIAM F. RYAN Assistant Director /s/ Tarek Sawi TAREK SAWI Trial Attorney

OF COUNSEL: SCOTT AUSTIN

Case 1:92-cv-00550-MCW

Document 131

Filed 10/18/2006

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MELINDA HART ELIZABETH HOSFORD JEFFERY INFELISE SAMEER YERAWADEKAR Trial Attorneys

Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 616-0323 Facsimile: (202) 307-0972 Attorneys for Defendant

October 18, 2006

Case 1:92-cv-00550-MCW

Document 131

Filed 10/18/2006

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on this 18th day of October 2006, a copy of the foregoing "DEFENDANT'S 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.

/s/ Tarek Sawi Tarek Sawi