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

Case 1:07-cv-00777-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS METCALF CONSTRUCTION CO., INC. ) ) Plaintiff, ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) __________________________________________)

Civil Action No.: 07-777C (Judge Braden)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A of the Rules of the United States Court of Federal Claims, the parties submit the following Joint Preliminary Status Report in response to questions set forth in paragraph III(4) of Appendix A. a. Jurisdiction:

The parties are currently unaware of any reason why the Court would lack jurisdiction to entertain the complaint. b. Consolidation:

The parties are unaware of any other case that should be consolidated with this action. c. Bifurcation:

At this time, the parties do not believe that the trial of liability and quantum should be bifurcated. d. Deferral:

The parties know of no reason to defer proceedings in this case pending consideration of any other case presently before the Court. e. Remand/Suspension:

No party seeks remand or suspension.
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f.

Joinder: At this time, the parties do not believe any other party will need to be joined.

g.

Dispositive Motions:

The parties do not anticipate filing dispositive motions prior to the completion of discovery but may reassess the filing of dispositive motions during the discovery period. h. Relevant Issues: l. Whether the Government breached the Contract by, among other things,

acting in bad faith. 2. Whether Metcalf is entitled to an adjustment to the Contract price and to

the completion date for delays and additional costs on the Project arising from various and sundry issues. i. Settlement:

The parties will conduct settlement negotiations, and will discuss the possibility of submitting this case for alternative dispute resolution as discovery proceeds. If the parties agree to pursue alternative dispute resolution, we will notify the Court promptly. j. Trial:

Both parties anticipate proceeding toward trial should discovery reveal that dispositive motions, ADR, or settlement are inappropriate. k. Electronic Case Management:

The parties are aware of the Court's electronic case management procedures and will comply with them. In addition, the parties will cooperate with regard to the use of electronic document management techniques where possible.

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l. 1.

Other Information: The Defense Contract Audit Agency (DCAA) is currently conducting an audit of

plaintiff's certified claim, dated March 30, 2007, which is the subject of this action including pass through claims of various subcontractors of Metcalf. 2. United States of Amer. for the Use and Benefit of Shockley + Burridge, LLC v.

Metcalf Constr. Co., Inc., No. 05-0682 (D. Ha.) (dismissed pursuant to Federal Rules of Civil Procedure 41(a)(1) and (c) September 13, 2007), an action filed pursuant to the Miller Act, 40 U.S.C. § 3131, arose from the same construction project that is the subject of this action (Shockley + Burridge was a subcontractor to the Plaintiff in this action). 3. Atlas Mechanical, Inc. v. Metcalf Constr. Co., Inc., No. 07-0288 (D. Ha.), an

action filed pursuant to the Miller Act, 40 U.S.C. § 3131, arises from the same construction project that is the subject of this action (Atlas Mechanical was a subcontractor to the Plaintiff in this action). Discovery: The parties request a discovery period of nine months, commencing with the approval of this joint preliminary status report. The parties propose that any initial expert reports be due 75 days before the end of the discovery period and any rebuttal expert reports be due 45 days before the end of the discovery period, with any expert depositions to take place thereafter. If the DCAA audit is not completed at least 90 days prior to the discovery deadline, the parties agree that discovery on the damages portion of the dispute shall remain open until 90 days following the issuance of the DCAA audit, or for a longer period if mutually agreed. The parties also propose that they file a joint status report proposing further proceedings within 30 days after the close of discovery.

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Dated: March 20, 2008

Respectfully submitted, /s/ Robert J. Symon Robert J. Symon Bradley Arant Rose & White LLP 1133 Connecticut Avenue, NW 12th Floor Washington, D.C. 20036 (202) 393-7150 (phone) (202) 347-1684 (facsimile) Attorney for Plaintiff METCALF CONSTRUCTION CO., INC.

Of Counsel: Eric A. Frechtel Bradley Arant Rose & White LLP 1133 Connecticut Avenue, N.W. 12th Floor Washington, D.C. 20036 (202) 393-7150 (phone) (202) 347-1684 (facsimile)

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Reginald T. Blades, Jr. REGINALD T. BLADES, JR. Assistant Director

Of Counsel:

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MONIQUE MYATT GALLOWAY Trial Attorney Navy Litigation Office Office of The General Counsel Department of The Navy RONALD G. RESS Naval Facilities Engineering Command, Hawaii

/s/ David S. Silverbrand DAVID S. SILVERBRAND Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-3278 Fax: (202) 353-7988 Attorneys for Defendant

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