Free Response to Motion - District Court of Federal Claims - federal

Case 1:08-cv-00198-LMB

Document 13

Filed 04/05/2008

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IN THE LINITED STATES COURT OF FEDERAL CLAIMS

BAY PLAZA PROPERTIES. LLC. et al.
Plaintiffs,
v.

No.

07-198

THE UNITED STATES OF AMERICA
Defendant.

Hon. Lawrence M. Baskir

PLAINTIFF'S RESPONSE TO THE DEFENDAIIT'S MOTION FOR A STATUS CONFERENCE AI{D TO STRJKE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT COME NOW Plaintiffs, Bay Plaza Properties, LLC, et al, by and through undersigned
counsel and

in

response

to Defendant's Motion for a Status Conference and to Strike

the

Plaintiff s Motion for Partial Summary Judgment, hereby state as follows:

1.

On May I,2407 , the thirteen landowners in Rogers v. United States,07-273,

fied

a claim seeking'Just compensation" for the taking of their land which occurred when the federal

Surface Transportation Board issued a Notice of Interim Trail Use

("NITU") on April 2,2004

that applied to the more than 12 mile long abandoned CSX railroad corridor between Sarasota, Florida and Venice, Florida. This order was issued pursuant to the federal Trails Act, 16 U.S.C.

$ 1247(d). The Rogers plaintiffs requested that this case be certified as an opt-in class action
pursuant to RCFC 23.

2.

On June 27,2007, the 10 landowners in Bird Bay v. United States,07426, filed a

similar claim for property involving this same order of the STB and the same NITU and
abandoned railroad right-of-way (but the Bird Bay plaintiffs did not request class certification).

3.

On July 6,2007, a Notice of lndirectly Related Case, pursuant to RCFC 40.2(b),

was filed in Bird Bay and Rogers.

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4.

On November 2, 2007, the landowners in Rogers filed a Motion for Partial

Summary Judgment on the threshold issue of the federal govemment's liability pursuant to
RCFC 56.

5.
case,

On November 7,2007, Judge Bush issued an order transferring the later filed

Bird Bay,to Jadge Williams for consolidation with Rogers.

6.
RCFC 56.

On November 12,2007, the landowners in Bird Bay fied a Motion for Partial

Summary Judgment on the threshold issue of the federal government's liability pursuant to

7.

On November 21, 2007, Judge Williams granted the Plaintiffs' motion to have

Rogers certified as an "opt-in" class action pursuant to RCFC 23, and on that same day, Judge

Williams also entered an order providing that those Sarasota County, Florida landowners that
may have a possible claim for compensation be notified, and specifying that by February 11,
2008, landowners submit an "Entry of Appearance" in the specified format to Plaintiffs' counsel, that on February 19, 2008, Plaintiffs' counsel submit the "Claim Book" consisting of all Entries

of Appearance to this Court and to the Department of Justice, and that the Defendant had until
April 24,2008 to file any objection to any Entry of Appearance that the Defendant disputed.
(Docket Nos. 31, 32).

8.

On December 14,2007, Jtdge Williams ordered that Rogers and Bird Baybe

consolidated for briefing on the threshold issue of the government's liability for a taking of the landowner's property by operation of the Trails Act.

9,

On February 15, 2008, Judge Williams entered an order extending the time for

submission of Entries of Appearance by landowners and the time for objection by the Defendant

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by thirty days, such that the current date by which the Defendant must make its objections is
May 23,2008. (Docket No. 40).

10.

On March 20, 2008, the date that the Enffies of Appearance were due in the

Rogers class action, 32 Sarasota County landowners holding title to 37 parcels of land chose not

to participate in the Rogers "opt-in" class action, but to instead file their claim for 'Just
compensation" as a separate action, Bay Plaza Properties, LLC, et al. v. United States,08-198.

11.
Seaboard

These claims

by the Bay Plaza

landowners involved the same abandoned

Air Line Railway corridor

and the same NITU as that in Rogers and Bird Bay.

12.

The Bay Plaza landowners filed a Notice of Indirectly Related Case pursuant to

RCFC 40.2(b) and a Motion to Transfer the Bay Plaza case to Judge Williams for consolidated

briefing on the threshold issue of the government's liability.l

13. 14.
Bird Bay

The Bay Plctza landowners also filed a motion to have the case consolidated for

briefing on the common threshold issue of the government's liability with Rogers and Bird Bay.

To place Bay Plaza in the same procedural posture as the pending Rogers and

cases, the

Plaintiffs filed a motion for partial surnmary judgment on the common

threshold issue of the government's liability and a motion for leave to file this motion for partial
summary judgment contrary to RCFC 56(a). The Motion for Partial Summary Judgment filed in

Bay Plaza is (except for reference to the named plaintiffs and their property) in all respects
identical to the Motions for Partial Summary Judgment filed in Rogers and Bird Bay, filed on
November 2,2007 and November 12,2007 respectively.

' The Defendant noted that the Notice of lndirectly Related Case was filed in the Bay Plaza c,ase and not in the earlier filed case, Rogers, as specified by RCFC 40.2(bX1). The Plaintiffs have filed the Notice of Indirectly Related case in Rogers and Judge Williams is aware of the pending
Bay Plaza case and the Plaintiffs' motion to have Bay Plaza transfened to her.

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15.

On

April 1,2008,

Judge Williams held a status hearing tn Rogers and Bird Bay.

Counsel for the landowners informed the Court during this hearing that the Bay Plaza case had
been filed and that a motion to have Bay Plaza transferred and consolidated for purposes of the

initial briefing and determination of liability with Rogers and Bird Bay had been filed. (Docket
Entry on 4/2108).

16. L7.

The landowners seek to resolve this case in as cost-efficient and as prompt a

fashion as possible.

As such, the landowners have requested that this Court enter an order that Bay

Plaza be transferred to Judge Williams and that Bay Plaza be consolidated with Rogers and Bird

Bay for briefing on the threshold issue as provided in the order entered by Judge Williams on
December 14,2007 and that the briefing schedule

n Bay Plaza be the same as the schedule

that

Judge Williams set forth in her order of December 13,2007 (Docket No. 37).

18.

During the April l't hearing, Judge Williams indicated that

-

should Bay Plazabe

transferred to her

-

she was inclined to grant the govenrment's request to extend the briefing

schedule by 30 days.

19.

Counsel for the landowners indicated that they would not object to a 30 day

extension of the liability briehng schedule.

ACCORDINGLY, the Plaintiffs in Bay Plaza request that this Court enter an order
directing that: (1) BayPlaza be transferred to Judge Williams pursuant to RCFC +0(2)(b);(2) that, once transferred to Judge Williams, the Court enter an order consolidating Bay Plaza for

briefing with Rogers and Bird Bay as specified in the Court's orders of December 13 and
December 14 (Docket Nos. 37, 38) and, (3) that should the Defendant request a 30 day extension to this briefing schedule, the Plaintiffs consent to such an enlargement of time.

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As to Defendant's request for a status conference, the plaintiffs do not oppose a status
conference but believe that, should this matter be tansferred conference before Judge williams on

to Judge williams, the status

April l't

addressed all matters raised by the Defendant and

a further status conference would be unnecessary. To the extent that this court desires a status conference or the Defendant raises matters not addressed during the

April l,t

status conference

before Judge williams, the Plaintiffs would make themselves available at the court's earliest
convenience in person or by telephone.

Respectfu

lly submitted,

Date: April5,2008

LATHROP & GAGE. L.C.

MARK F. ("THoR") HnenNr, Lruosay S.C. Bnwrow

II

MecHauS. LancENr
The Equirable Building l0 South Broadway, Suite 1300 St. Louis, MO 63102-170g

Telephone: (3 14) 613-2500

Facsimile: (314\ 6t3'-2550
Thornet@ix. netcom.com

Attomey for Plaintiffs