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

Case 1:07-cv-00032-CCM

Document 40

Filed 05/06/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BANK OF GUAM, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

No. 07-32C (Judge Miller, C.)

THE UNITED STATES, Defendant.

DEFENDANT'S MOTION FOR LEAVE TO FILE A SURREPLY AND SURREPLY TO PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION Defendant, the United States, respectfully requests leave to file the attached brief surreply to the plaintiff Bank of Guam ("the Bank")'s April 18, 2008 reply and appendix and its April 23, 2008 amended or corrected reply to our April 10, 2008 response to the Bank's March 24, 2008 motion for reconsideration of the Court's March 12, 2008 decision granting our motion to dismiss the Bank's complaint. Bank of Guam v. United States, no. 07-32 (Mar. 12, 2008). We respectfully submit that good cause exists for our surreply. As we demonstrate in detail in the attached proposed surreply, the Bank's assertion in its motion at 1 that: "defendant has raised new issues and arguments and . . . has misstated many of the issues which plaintiff raised" -- is without merit. The Bank did not identify the allegedly "new" issues and arguments, and, in any event, we demonstrate that none were raised and that we have not misstated the issues. Second, the Bank's reply filed for the first time in this case documents that its counsel has possessed since 2002 and argument relating thereto ­ materials and related argument that the Bank waived because it waited to present it for the first time in this case in its proposed reply to our response to the Bank's motion for reconsideration. See Stockton East Water Dist. v. United

Case 1:07-cv-00032-CCM

Document 40

Filed 05/06/2008

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States, 76 Fed. Cl. 497, 500 (Fed. Cl. 2007), citing Bluebonnet Sav. Bank, v. United States, 466 F.3d 1349, 1361 (Fed.Cir.2006). Third, the Bank's reply contains several misstatements and erroneous characterizations of our filings to which we have not had the opportunity to respond. Fairness and accuracy will be served by consideration of our surreply. CONCLUSION For these reasons, we respectfully submit that good cause supports our motion and request that the Court grant leave to file the attached surreply. Respectfully submitted, JEFFREY S. BUCHOLTZ Assistant Attorney General s/Jeanne E. Davidson
JEANNE E. DAVIDSON Director

OF COUNSEL:
THEODORE C. SIMMS II Attorney-Advisor Department of the Treasury Bureau of the Public Debt Washington, D.C. CLEVE LISECKI

s/Brian A. Mizoguchi
BRIAN A. MIZOGUCHI Trial Attorney Commercial Litigation Branch Civil Division United States Department of Justice Attn.: Classification Unit 8th Flr. 1100 L Street, N.W.

Washington, D.C. 20530 Tel: 202.305.3319

Attorney-Advisor Internal Revenue Service Office of the Associate Chief Counsel (International) 1111 Constitution Ave, NW Washington, DC 20224
Dated: May 6, 2008

Attorneys for Defendant

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Case 1:07-cv-00032-CCM

Document 40

Filed 05/06/2008

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CERTIFICATE OF FILING I hereby certify that on May 6, 2008, a copy of the foregoing "DEFENDANT'S MOTION FOR LEAVE TO FILE A SURREPLY AND SURREPLY TO PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR" 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. Parties may access this filing through the Court's system.

s/Brian A. Mizoguchi