Free Status Report - District Court of Federal Claims - federal

Case 1:07-cv-00285-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ELIP, LLC, ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

Hon. Margaret M. Sweeney

No. 07-285

FOURTH JOINT STATUS REPORT Plaintiff ELIP, LLC, and Defendant, United States of America, by and through their respective counsel, hereby submit this Fourth Joint Preliminary Status Report pursuant to the Order of this Court (Docket No. 12). O. INTRODUCTION The parties submit this Fourth Joint Preliminary Status Report pursuant to the Order of the Court dated February 12, 2008 (Docket No. 15). Much of the following information has changed since the parties' Third Joint Preliminary Status Report. Updates appear in the following sections: C. Bifurcation; G. Motions; H. Relevant Factual and Legal Issues; I. Settlement; and L. Discovery Plan. A. JURISDICTION Assuming that Plaintiff can establish the necessary facts and that litigation of this matter becomes necessary, the parties agree that the Tucker Act, 28 U.S.C. § 1491, confers jurisdiction on this Court to adjudicate a claim of a Fifth Amendment taking.

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B.

CONSOLIDATION The parties do not believe this case should be consolidated with any other case.

C.

BIFURCATION Due to the fact that Defendant has filed a Stipulation of Liability, bifurcation of these

proceedings between the liability and damages phases is not necessary. D. DEFERRAL OF PROCEEDINGS The parties believe that this case may be appropriate for resolution by settlement. In the event that settlement proceedings are fruitful, Defendant foresees staying these proceedings until a final settlement is reached. E. REMAND OR SUSPENSION The parties are not seeking a remand or suspension. F. ADDITIONAL PARTIES The parties do not anticipate the addition of any other parties to this suit. G. MOTIONS Plaintiff's Statement On June 10, 2008, Defendant filed a Stipulation of Liability. Defendant stipulated that its temporary physical taking started on October 1, 2002, continues to the present, and will continue until October 1, 2010. Having resolved the issue of whether the United States is liable for a taking of Plaintiff's property, Plaintiff need not file a Motion for Summary Judgment and does not anticipate filing any other motions. Defendant's Statement At this time, Defendant does not see the need for motions practice.

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H.

RELEVANT FACTUAL AND LEGAL ISSUES Plaintiff's Statement 1. 2. What amount of compensation is Plaintiff due? Should Defendant be sanctioned pursuant to RCFC 11(c)(1) -(4) for making

representations to the Court intended to harass a party or cause unnecessary delay; for making claims not warranted by existing law or a nonfrivolous argument; for making allegations and other factual contentions without evidentiary support; and for denying factual contentions when not warranted on the evidence? Defendant's Statement 1. 2. Is the United States liable for a taking of Plaintiff's property? (stipulated) What amount of compensation is Plaintiff due?

I.

SETTLEMENT Defendant's Stipulation of Liability has limited the settlement discussions to damages. The

parties exchanged appraisals to negotiate a damages settlement. Defendant has also deposed Plaintiff's property appraiser. Unfortunately, these actions have not brought the parties closer to settlement. Defendant's settlement offer is far below Plaintiff's expert's appraised amount. In the increasingly likely event that settlement discussions are not effective, Plaintiff anticipates that this matter will go to trial. Defendant does not anticipate that trial will be necessary.

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J.

TRIAL Plaintiff's Statement Plaintiff anticipates going to trial. Defendant's Statement Defendant does not anticipate that trial will be necessary.

K.

ELECTRONIC CASE MANAGEMENT NEEDS There are no special issues regarding electronic case management needs.

L.

DISCOVERY PLAN Discovery for this matter was initially scheduled to close February 1, 2008. Defendant filed a

Motion to Extend the Discovery Period (Docket No. 13) requesting a 90 day extension, and Plaintiff filed a timely Response (Docket No. 14) in opposition. The Court issued its ruling in an Order dated February 12, 2008 (Docket No. 15) which extends the discovery period to no later than May 1, 2008. Defendant filed a second Motion to extend the discovery deadline to June 23, 2008, after seeking leave from the Court to file the Motion out of time (Docket No. 17). The purpose for the extension was to allow the parties sufficient time to depose each other's property appraisers. In its May 16, 2008 Order, the Court extended the discovery deadline (Docket No. 21). The deposition of Plaintiff's property appraiser took place on June 24, 2008 at the Abood Law Firm, located in East Lansing, Michigan, upon agreement of the parties. Although the discovery period has now closed, pursuant to RCFC 29, parties will stipulate that the deposition of Defendant's property appraiser can take place. In addition, Plaintiff is securing another appraisal, and counsel for defendant has indicated that he will depose this expert as well. Finally, on June 2, 2008, Plaintiff filed a Request to Produce Documents. Counsel for Defendant has

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indicated that Defendant will need at least thirty (30) days for its full response. Respectfully submitted by Defendant on behalf of Plaintiff and Defendant this 22nd day of July, 2008.

/s/ Andrew P. Abood THE ABOOD LAW FIRM BY: Andrew P. Abood 246 East Saginaw Street, Suite 100 East Lansing, Michigan 48823 Telephone: (248) 332-5900 Fax: (248) 332-0700 Counsel for Plaintiff. /s/ Mark T. Romley Mark T. Romley Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0458 Fax: (202) 305-0506 Counsel for Defendant.

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