Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:07-cv-00206-FMA

Document 15

Filed 08/31/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Lublin Corp., t/a Century 21 Advantage Gold, Plaintiff, v. The United States, Defendant. ) ) ) ) ) ) ) ) )

No. 07-206C (Judge Allegra)

DEFENDANT'S CONSENT MOTION FOR A RULE 16 SCHEDULING ORDER

Pursuant to Rule 16(b) of the Rules of the Court of Federal Claims ("RCFC"), defendant respectfully requests this Court to enter a scheduling order for defendant to file a motion for summary judgment and possibly a renewed motion to dismiss. Plaintiff consents to the instant motion. On August 7, 2007, following a hearing held that same day, this Court denied defendant's motion to dismiss as moot, but required plaintiff to file a motion to amend its complaint on or before August 28, 2007. On August 27, 2007, plaintiff filed such a motion, along with its first amended complaint. The Government did not oppose plaintiff's motion. On August 29, 2007, the Court granted plaintiff's motion to amend its complaint. As discussed at the August 7, 2007 hearing, defendant intends to move for summary judgment on the grounds that none of the Department of Housing and Urban Development officials mentioned in plaintiff's amended complaint possessed the authority to enter into the putative implied-in-fact contract that plaintiff alleges defendant breached. In addition, as discussed at the hearing, defendant may move to dismiss for lack of jurisdiction based on the

Case 1:07-cv-00206-FMA

Document 15

Filed 08/31/2007

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Contract Disputes Act. Finally, defendant believes that applicable Federal Acquisition Regulations may preclude plaintiff's claims in this case as a matter of law. Plaintiff intends to oppose any such motion to dismiss or for summary judgment. In particular, plaintiff believes that it is entitled, at a minimum, to discovery on the authority issue. Accordingly, to resolve the aforementioned issues, defendant respectfully requests that the Court enter the following scheduling order: 1. On or before October 12, 2007, defendant shall file its motion to dismiss and/or for summary judgment; 2. On or before November 13, 2007, plaintiff shall file its opposition to defendant's motion; 3. On or before December 3, 2007, defendant shall file its reply brief. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

JEANNE E. DAVIDSON Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director

s/ Matthew H. Solomson MATTHEW H. SOLOMSON Trial Attorney, Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3274 Fax: (202) 514-8624 August 31, 2007 Attorneys for Defendant -2-

Case 1:07-cv-00206-FMA

Document 15

Filed 08/31/2007

Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that, on this 31st day of August 2007, I caused to be filed electronically the foregoing DEFENDANT'S CONSENT MOTION FOR A RULE 16 SCHEDULING ORDER with the United States Court of Federal Claims. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Matthew H. Solomson MATTHEW H. SOLOMSON