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

Case 1:07-cv-00032-CCM

Document 29

Filed 02/20/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________ ) BANK OF GUAM, ) ) Plaintiff, ) ) v. ) No. 07-32C ) (Judge C. Miller) THE UNITED STATES, ) ) Defendant. ) ______________________________) DEFENDANT'S RESPONSE TO PLAINTIFF'S SECOND REQUEST FOR REARGUMENT OF DEFENDANT'S MOTION TO DISMISS Defendant, the United States, respectfully responds to plaintiff Bank of Guam's February 14, 2008 motion for further argument upon our motion to dismiss. We do not believe that further oral argument is necessary but defer to the Court's preference. We would object to any attempt by plaintiff to use oral argument to raise any issues not already covered by the parties' briefs. By letter dated December 6, 2007 (later returned unfiled), plaintiff attempted to request reargument of our motion to dismiss. On December 7, 2007, the Court ordered the parties to file supplemental briefing upon the topic of issue preclusion. The Court's order at 3, n.2, stated that: The court does not contemplate further argument on this issue. As the case was transferred after completion of briefing and argument, this court will endeavor to render a prompt decision following the filing of the supplemental briefing ordered this date. By motion dated February 14, 2008, the Bank requested "re-argument of all of the issues raised by the motion to dismiss" (emphasis in the original). Oral argument is for the benefit of the Court, and we defer to the Court's discretion in determining whether oral argument would assist in the resolution of the pending motions.

Case 1:07-cv-00032-CCM

Document 29

Filed 02/20/2008

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Naturally, should the Court desire, for any reason, to hold further argument, we would participate. The Bank's motion presents no valid justification for "re-argument" of "all of the issues." The Bank contends that it was "not permitted to present a full explication of its responses" to our motion. However, the Bank, through its counsel of record, has filed two briefs: one 36-page brief opposing our motion and one 10-page brief responding to the Court's order for supplemental briefing. The Bank was represented at the November 2007 oral argument by the same counsel that also represented the Bank in Bank of Guam v. Director of Dept. of Rev. & Taxation, No. 01-00016, 2002 U.S. Dist. LEXIS 9662 (D. Guam 2002). Thus, it is clear that the Bank has been permitted to present a full explication of its responses to our motion. Given these facts, we infer that the Bank could only be requesting "re-argument" for the purpose of arguing -for the first time -- some issue or point not set forth in its complaint or in its two prior briefs. We object to any such untimely attempt to assert new matters not previously raised by the Bank in its complaint or briefs responding to our motion to dismiss. Respectfully submitted, JEFFREY S. BUCHOLTZ Deputy Assistant Attorney General s/Jeanne E. Davidson
JEANNE E. DAVIDSON Director

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Case 1:07-cv-00032-CCM

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Filed 02/20/2008

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s/Brian A. Mizoguchi
OF COUNSEL: THEODORE C. SIMMS, II Attorney-Advisor Department of the Treasury Bureau of the Public Debt Washington, D.C. BRIAN A. MIZOGUCHI Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 Tel: 202.305.3319 Dated: February 20, 2008 Attorneys for Defendant

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Case 1:07-cv-00032-CCM

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Filed 02/20/2008

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CERTIFICATE OF FILING I hereby certify that on February 20, 2007, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFF'S SECOND REQUEST FOR REARGUMENT OF DEFENDANT'S MOTION TO DISMISS" 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

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