Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:07-cv-00324-GWM

Document 13

Filed 10/19/2007

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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 OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 07-324C (Judge Edward J. Damich)

PLAINTIFF'S APPLICATION TO FILE A SHORT SUR-REPLY IN RESPONSE TO DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS Plaintiff, Todd Construction, L.P. f/k/a Todd Construction Co., Inc. ("Todd"), respectfully requests that the Court grant it leave to file a short sur-reply to defendant, The United States of America's ("Government"), reply in support of its motion to dismiss. 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. Also, the Government has taken out of context and has otherwise misstated various statements in Todd's brief in opposition of the Government's motion. Todd requests an opportunity to briefly respond to these new allegations and arguments. Finally, Todd's lead counsel, Robert L. Magrini, is involved in two arbitrations presently set for October 22, 2007, and October 30, 2007.1 Both hearings are scheduled to take at least three days, more or less. As such, Todd respectfully requests that the Court set November 9, 2007, or thereafter, as the deadline in which to file the surreply. Todd's counsel has attempted to contact counsel for the Government, Maame A.F. Ewusi-

W. S. Bowlware Construction, Inc. v. David Gayler d/b/a Gayler Construction, American Arbitration Association, Case No. 71 100 E 0028 07; and, SSI, Inc. of Oklahoma v. Riverview Park Estates, LLC, American Arbitration Association, Case No. 71 110 Y 00114 07.

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Case 1:07-cv-00324-GWM

Document 13

Filed 10/19/2007

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Mensah, about this request. However, Ms. Ewusi-Mensah is unavailable until October 26. This request is not made for the purposes of delay, but to further the interests of justice. Respectfully submitted, s/Robert L. Magrini Robert L. Magrini, OBA #12385 Hayes Magrini & Gatewood 1220 North Walker (73103) / P. O. Box 60140 Oklahoma City, Oklahoma 73146-0140 [email protected] Phone: (405) 235-9922 Fax: (405) 235-6611 Attorneys for Plaintiff, Todd Construction, L.P. f/k/a Todd Construction Co., Inc.

CERTIFICATE OF FILING On the 19th day of October, 2007, I electronically transmitted the foregoing "Plaintiff's Application to File a Short Sur-Reply in Response to Defendant's Reply in Support of its Motion to Dismiss" to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Maame A.F. Ewusi-Mensah. 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/Robert L. Magrini Robert L. Magrini

todd.gen\Ct of Fed Claims Case 07.324C\App.to.File.Surreply

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