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

Case 1:91-cv-00984-EGB

Document 48

Filed 03/03/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MANKE LUMBER CO., et al. (MT. ADAMS VENEER CO.), Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

Consolidated under lead case No. 33-85C (No. 91-984C) (Judge Bruggink)

DEFENDANT'S CONSENT MOTION FOR AN ORDER AUTHORIZING SERVICE OF A SUBPOENA MORE THAN 100 MILES FROM THE PLACE OF TRIAL IN MT. ADAMS VENEER CO. v. UNITED STATES, No. 91-984C Defendant, pursuant to Rule 45(b)(2), respectfully requests that the Court enter an Order authorizing service of a subpoena directing David Note1 to appear in Seattle for the trial in this case to be held April 5-7, 2005, notwithstanding that he will be required to travel more than 100 miles to testify at the trial. Undersigned counsel has discussed this matter with opposing counsel, Dennis Dunphy, who consents to this request. Rule 45(b)(2) provides in pertinent part: a subpoena may be served at any place that is within 100 miles of the place of the deposition, hearing, trial, productiion, or inspection specified in the subpoena; but the court upon proper application and good cause shown may authorize the service of a subpoena at any other place. As stated in our witness list, Mr. Note is a retired Forest Service official. He was the contracting officer for the Gifford Pinchot National Forest when Mt. Adams' Lynx contract

Mr. Note will be a Government witness; he is listed on our exhibit list filed on February 11, 2005. -1-

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Case 1:91-cv-00984-EGB

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expired uncompleted on June 30, 1989, and he issued the June 22, 1990 final decision assessing damages against Mt. Adams. Undersigned counsel has communicated with Mr. Note, who has told us that he is willing to appear and testify at trial. Mr. Note's permanent place of residence is at 10321 NE 157th Avenue, Vancouver, Washington (which is more than 100 miles from the place of trial). However, he is presently traveling in Florida in a recreational vehicle. Mr. Note has informed undersigned counsel that he intends to return to his home in Vancouver, Washington, before the scheduled trial, but that the exact date of his return is presently uncertain. Thus, we may serve the subpoena upon Mr. Note in Florida or in Washington State, as needed. Notwithstanding Mr. Note's cooperation, we believe it is prudent to serve him with a subpoena, along with an appropriate Order issued by the Court, compelling his appearance at the trial. The subpoena will also be needed for Mr. Note to be reimbursed as provided by law for his expenses associated with his appearance at trial. Under the circumstances, we respectfully request that the Court issue an Order authorizing service of a subpoena on Mr. Note either in Florida or in Washington State, directing him to appear at trial in Seattle during the period April 5-7, 2005. Respectfully submitted, PETER D. KEISLER Assistant Attorney General J. CHRISTOPHER KOHN Director

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s/John W. Showalter JOHN W. SHOWALTER Assistant Director

s/Richard P. Nockett RICHARD P. NOCKETT Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L St., N.W. (8th Floor) Washington, D.C. 20530 Tele: (202) 307-1134 Fax: (202) 307-0494 Attorneys for Defendant Dated: March 3, 2005

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 3d day of March 2005, I caused copies of the foregoing "DEFENDANT'S CONSENT MOTION FOR AN ORDER AUTHORIZING SERVICE OF A SUBPOENA MORE THAN 100 MILES FROM THE PLACE OF TRIAL IN MT. ADAMS VENEER CO. v. UNITED STATES, No. 91-984C" to be served upon the following individual by facsimile and by United States mail (first-class, postage prepaid):

DENNIS J. DUNPHY, Esq. Schwabe, Williamson & Wyatt 1420 Fifth Avenue, Suite 3010 Seattle, Washington 98101-2393

s/Richard P. Nockett

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