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

THIRD JOINT STATUS REPORT Plaintiff ELIP, LLC, and Defendant, United States of America, by and through their respective counsel, hereby submit this Second Joint Preliminary Status Report pursuant to the Order of this Court (Docket No. 12). INTRODUCTION The parties submit this Third Joint Preliminary Status Report pursuant to the Order of the Court dated February 12, 2008 (Docket No. 15). Much of the following information is the same as the information reported in the parties' Second Joint Preliminary Status Report. Updates appear in the following sections: G. Motions; 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. B. CONSOLIDATION The parties do not believe this case should be consolidated with any other case.

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C.

BIFURCATION The parties believe that these proceedings should be bifurcated between the liability and

damages phases. 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 Plaintiff will file a Motion for Summary Judgment on the Issue of Liability pursuant to RCFC 56(c) before the deadline the Court indicates in its Preliminary Scheduling Order should Defendant retreat from previous admissions on the issue of whether the United States is liable for a taking of Plaintiff's property. Defendant's Statement Defendant filed a 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. The Court granted the Motion to file out of time (Docket No.18) but has not yet ruled on the request to extend the

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discovery deadline. Currently, the parties are proceeding on the assumption that the Court will grant the request to extend the discovery deadline. In the event that this matter is not resolved through settlement, Defendant is prepared to enter a stipulation of liability. H. RELEVANT FACTUAL AND LEGAL ISSUES Plaintiff's Statement 1. The Defendant admits that it installed a tower for use by air traffic controllers at

Lansing City Airport (Ans. ¶ 6). Defendant admits that it maintains this tower without paying rent (Id. at ¶¶ 8, 10) on property to which Plaintiff holds title. Defendant has acknowledged that the parties do not dispute whether the United States is liable for a taking of Plaintiff's property. Should Defendant refuse to admit liability, Plaintiff will file a Motion for Summary Judgment on the Issue of Liability. 2. 3. 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? What amount of compensation is Plaintiff due?

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I.

SETTLEMENT The parties believe that this case may be appropriate for resolution by settlement. Defendant

has indicated its willingness to stipulate to liability to limit the settlement discussions to damages. The parties exchanged appraisals to negotiate a damages settlement In the event that settlement are not efficient, Plaintiff anticipates that this matter will go to trial and Plaintiff would submit a Motion for Summary Judgment. J. TRIAL Plaintiff's Statement Plaintiff anticipates going to trial. Defendant's Statement Defendant does not anticipate that trial will be required. 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. The parties are to submit a joint status report thereafter and no later than May 15, 2008. Defendant filed a 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

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was to allow the parties sufficient time to depose each other's property appraisers. The Court granted the Motion to file out of time (Docket No.18) but has not yet ruled on the request to extend the discovery deadline. Currently, the parties are proceeding on the assumption that the Court will grant the request to extend the discovery deadline. The parties anticipate deposing each other's appraisers on Monday June 9, 2008 at the Abood Law Firm, located in East Lansing, Michigan. Respectfully submitted by Defendant on behalf of Plaintiff and Defendant this 15th day of May, 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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