Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:08-cv-00028-CCM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMODITY SOLUTIONS, LLC, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-28C (Judge C. Miller)

JOINT PRELIMINARY STATUS REPORT Pursuant to Appendix A of the Rules of the United States Court of Federal Claims, plaintiff and defendant respectfully submit the following joint preliminary status report: a. Jurisdiction

Plaintiff states that the Court has jurisdiction to consider and decide this action pursuant to 28 U.S.C. § 1491(a)(1) and (2), and 41 U.S.C. § 609(a)(1). Defendant is not aware of a basis upon which to challenge the Court's jurisdiction at this time. b. Consolidation

The parties agree that, at this time, this case should not be consolidated with any other case. c. Bifurcation

The parties agree that trial of liability and damages should not be bifurcated. d. Deferral

The parties agree that further proceedings in this case should not be deferred pending consideration of another case before this Court of any other tribunal. e. Remand/Suspension

The parties agree that no remand or suspension will be sought.
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f.

Joinder

The parties agree that no additional parties will be joined. g. Dispositive Motions

One or both parties may move for summary judgment pursuant to RCFC 56. h. Relevant Issues 1. Whether the Government knew or should have known of the mistake in plaintiff's bid at the time the bid was accepted. 2. Whether plaintiff's delay in performance was beyond the control of and not the fault of plaintiff, rendering the Government's termination for default improper. 3. 4. Whether the Government's termination for default was premature. Whether the Government breached the duty of good faith and fair dealing when it reprocured the lentils from another supplier. 5. i. Whether the Government is entitled to damages for reprocurement.

Settlement

The parties anticipate pursuing settlement negotiations upon an informal basis as the litigation progresses. Plaintiff believes that some form of alternative dispute resolution may be appropriate. Defendant does not, at this time, believe that alternative dispute ADR is appropriate. j. Trial

As stated above, one or both parties may move for summary judgment pursuant to RCFC 56. If dispositive motions are not submitted, or if they are not completely dispositive of this action, the parties anticipate proceeding to trial. The parties do not request expedited trial -2-

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scheduling. The parties agree that trial should take place in Washington, D.C. k. Electronic Case Management

Parties have no special issue regarding electronic case management needs. l. Additional Information

Defendant intends to seek leave to amend its answer to include a counterclaim for reprocurement costs. Plaintiff intends to appeal the final decision awarding reprocurement costs that was issued on May 1, 2008 and relates to Contract Number VEP203162, the same contract at issue in this case. After the complaint is filed, Plaintiff may seek to consolidate that appeal with this appeal. m. Proposed Discovery Plan

The parties intend to conduct simultaneous discovery through interrogatories, requests for admission, requests for production of documents, and depositions. The parties do not anticipate expert testimony in this case. The parties propose the following discovery schedule: Exchange of Initial Disclosures Close of Fact Discovery Joint Status Report June 6, 2008 September 30, 2008 October 15, 2008

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Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director

s/ John G. DeGooyer John G. DeGooyer FOLEY & LARDNER LLP 3000 K Street, N.W., Suite 500 Washington, D.C. 20007-4143 Telephone (202) 295-4047 Facsimile (202) 672-5399 Counsel of Record for Plaintiff Commodity Solutions, LLC OF COUNSEL: George W. Ash Erin L. Toomey FOLEY & LARDNER LLP One Detroit Center 500 Woodward Avenue, Suite 2700 Detroit, MI 48226-3489 Telephone (313) 234-7100 Facsimile (313) 234-2800 May 23, 2008

s/ Reginald T. Blades, Jr. by s/ Kirk T. Manhardt REGINALD T. BLADES, JR. Assistant Director s/ Roger A. Hipp ROGER A. HIPP Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit Washington, D.C. 20530 Tele: (202) 305-3091 Fax: (202) 514-8640 Attorneys for Defendant

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