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

Case 1:07-cv-00195-MMS

Document 19

Filed 11/05/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) Plaintiffs, ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ______________________________)

DARRELL BOYE, et al.,

No. 07-195C (Judge Sweeney)

PLAINTIFFS' REPLY TO MOTION TO STAY PROCEEDINGS TO CONDUCT DISCOVERY COME NOW Plaintiffs, by and through counsel undersigned, and submit their Reply In The Motion For Stay To Conduct Discovery.1 Defendant's response does not state why discovery is not appropriate under these circumstances. For reasons it does not disclose, defendant in the underlying Motion To Dismiss has produced, in support of its arguments, only a few of the relevant documents. Defendant continues this duplicity now inferring that despite being a principal to the contract and having the statutory and contractual duty to insure its terms are carried out that "we attached to our reply copies of the contracts then located". (Resp. Pg. 2) (delineation added). Is Defendant representing to the court it does not have these yearly contracts and that there are no related documents that would shed light on the issues before the court? On this point one provision of the subject contracts allows Defendant to have access to the key documents on the issues before this court:

Noted now and in prior pleadings, Plaintiffs continue to correct defendant's misrepresentation that they have filed four lawsuits. Each lawsuit added new plaintiffs their legal and factual basis were identical.
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Case 1:07-cv-00195-MMS

Document 19

Filed 11/05/2007

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"payroll records of all employees be maintained [and that] this information must be available for inspection during bureau's (BIA) yearly mandatory visits." Ex. B, Sec. 107(B) and (B)(8), attached to Complaint

Defendant cannot be permitted to selectively produce documents that benefit its position without a full disclosure, it's a clear prejudice to Plaintiffs. If the court were to grant the Motion to Dismiss it could in its discretion make the dismissal without prejudice. However that ruling would in effect be on the merits because Plaintiffs would be left with no access to additional information to frame a refiled case. CONCLUSION Based on the above legal considerations and considerations of fairness to Plaintiffs, the court should allow a short period of discovery. WHEREFORE, Plaintiffs respectfully request the court issue a stay in this matter to allow for discovery. RESPECTFULLY SUBMITTED this 5th day of November, 2007.

LAW OFFICES OF EDWARD D. FITZHUGH /s/ Edward D. Fitzhugh Edward Fitzhugh P.O. Box 24238 Tempe, Arizona 85288-4238 Attorney for Plaintiffs

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Case 1:07-cv-00195-MMS

Document 19

Filed 11/05/2007

Page 3 of 3

CERTIFICATE OF FILING

I hereby certify that on this 5th day of November, 2007, a copy of the foregoing Plaintiffs' Reply to the Motion to Stay Proceedings to Conduct Discovery 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/ Edward D. Fitzhugh_________

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