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

Case 1:07-cv-00355-NBF

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Filed 05/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TEXAS NATIONAL BANK f/k/a MERCEDES NATIONAL BANK Plaintiff, VS. UNITED STATES Defendant. § § § § § § § § § §

NO. 07-00355C Judge Firestone

PLAINTIFF'S UNOPPOSED MOTION TO ABATE OR STAY DISCOVERY PENDING RESOLUTION OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

NOW

COMES

Plaintiff

TEXAS

NATIONAL

BANK

f/k/a/

MERCEDES

NATIONAL BANK ("Plaintiff") and files this Unopposed Motion to Abate or Stay Discovery Pending Resolution of Defendant's Motion for Summary Judgment based on the following: A. Conference with Opposing Counsel Plaintiff's counsel has conferred with Defendant's counsel and Defendant's counsel is unopposed to the filing of this motion. B. Background 1. On March 31, 2008 the parties filed a Joint Motion to Amend Scheduling Order informing the Court that they wanted to push the discovery deadline back in order to allow the parties to explore and discuss possible settlement of this case. At that time, Defendant had taken the depositions of two (2) of Plaintiff's witnesses in Texas, and Plaintiff was poised to take the depositions of two (2) of Defendant's witness, both of whom reside in Indiana. On April 2,

Case 1:07-cv-00355-NBF

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Filed 05/07/2008

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2008, the Court granted the parties' Motion and entered a new Scheduling Order setting the close of discovery for May 15, 2008. 2. Since that time, on April 22, 2008 Defendant informed Plaintiff that it is not interested in discussing settlement at this juncture, but instead intends to file a Motion for Summary Judgment based on the procedural issue of limitations. However, Defendant has informed Plaintiff that because of scheduling issues confronting Defendant's counsel (including trials in June and July), Defendant does not intend to file any summary judgment motion until late August (on or before August 29, 2008). 3. This has placed Plaintiff in a quandary, because Defendant's two (2) witnesses in Indiana, whom Plaintiff intended to depose on the merits of the case, have no information or testimony relevant to the procedural issue of limitations. And, the expense to Plaintiff to have its counsel travel to Indiana, with resultant airfare, hotel and attorney time, will be very substantial. If the case is dismissed on limitations, this expense will have been wasted. Argument 4. For that reason, Plaintiff requests that discovery in this case (specifically Plaintiff's ability to take the depositions of Defendant's two (2) witnesses in Indiana on the merits of the case) be abated or stayed until resolution of Defendant's impending summary judgment motion. It simply makes no sense for Plaintiff to incur the expense to take the depositions of two witnesses in a distant location, neither of whom will have anything relevant to say about the limitations issue. At the same time, Plaintiff does not want to lose the right to at least briefly

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question these witnesses prior to trial, if the case survives summary judgment and proceeds to trial. Therefore, in the interest of preserving resources and preventing needless waste of time and expense, Plaintiff requests that the Court abate or stay discovery as it pertains to Plaintiff's ability to take the above mentioned depositions pending a ruling on Defendant's summary judgment motion, which, again Defendant has informed it intends to file on or before August 29, 2008. PRAYER Based on the above, Plaintiff requests that this Unopposed Motion to Abate or Stay Discovery Pending Resolution of Defendant's Motion for Summary Judgment be granted and that Plaintiff have such other relief to which it may be entitled. Respectfully submitted, CASTILLO SNYDER, P.C. Bank of America Plaza, Suite 1020 300 Convent Street San Antonio, TX 78205 Telephone: (210) 630-4200 Facsimile: (210) 630-4210 By: s/Edward C. Snyder EDWARD C. SNYDER State Bar No. 00791699 ATTORNEYS FOR PLAINTIFF

Case 1:07-cv-00355-NBF

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document will be sent to the following counsel of record by: _______ _______ _______ _______ _______ __X____ Regular Mail Certified Mail, Return Receipt Requested Hand Delivery Facsimile E-Mail Electronic Filing

Joan M. Stentiford Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 202-616-0341 phone 202-514-8624 fax

ATTORNEY FOR DEFENDANT on this the 7th day of May, 2008.

s/Edward C. Snyder EDWARD C. SNYDER