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

Case 1:07-cv-00324-GWM

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Filed 11/05/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

TODD CONSTRUCTION, L.P. f/k/a TODD CONSTRUCTION CO., INC., Plaintiff, v. THE UNITED STATES, Defendant.

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No. 07-324C (Chief Judge Damich)

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SUR-REPLY Pursuant to Rule 7.2(a) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits this opposition to the motion for leave to file a sur-reply (in response to our reply in support of our motion to dismiss) filed by plaintiff Todd Construction, L.P. ("Todd Construction"). Todd Construction should not be permitted to file a sur-reply as no new matters were raised in our reply brief in support of our motion to dismiss. Todd Construction's stated grounds for seeking leave to file a sur-reply are without merit. First, Todd Construction erroneously states: "The Government is asserting for the first time a new position that its motion to dismiss should be treated as a motion for summary judgment." Pl. Mot. 1. Our reply does not state that our motion to dismiss should be treated as a motion for summary judgment, and contains no reference to any motion for summary judgment. Todd also makes the conclusory statement, without citation, that "the Government has taken out of context and has otherwise misstated various statements in Todd's brief in opposition of the Government's motion." Id. Todd Construction is not entitled to a sur-reply, particularly in this

Case 1:07-cv-00324-GWM

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Filed 11/05/2007

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instance where the United States raised no new issues in its reply brief. The fact that Todd Construction may disagree with the United States' characterization of Todd Construction's position is insufficient grounds for leave to file a sur-reply. The parties' submissions in this matter are sufficient to permit this Court to determine whether the United States has properly characterized Todd Construction's position, and more importantly, whether Todd Construction's complaint should be dismissed. A sur-reply would either be cumulative or would inappropriately permit Todd Construction to introduce new arguments not made in its opposition to our motion to dismiss. CONCLUSION For the foregoing reasons, defendant respectfully requests that the Court deny Todd Construction's motion for leave to file a sur-reply. To the extent that this Court grants Todd Construction's motion, defendant respectfully requests leave to file a response to any new arguments raised in the sur-reply. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Franklin E. White, Jr. FRANKLIN E. WHITE, JR. Assistant Director

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Case 1:07-cv-00324-GWM

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Of Counsel: MARY L. ASHBY Assistant District Counsel Office of Counsel Savannah District US Army Corps of Engineers 100 Oglethorpe Avenue P.O. Box 889 Savannah, GA 31402 Tel: (912) 652-5025 Fax: (912) 652-5126

s/ Maame A.F. Ewusi-Mensah MAAME A.F. EWUSI-MENSAH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 353-0503 Fax: (202) 514-8624

October 12, 2007

Attorneys for Defendant

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Case 1:07-cv-00324-GWM

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CERTIFICATE OF FILING

I hereby certify that on this 5th day of November, 2007, a copy of the foregoing "DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREPLY" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. The parties may access this filing through the Court's system.

s/ Maame A.F. Ewusi-Mensah