Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:06-cv-00943-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

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Case No. 06-943 Judge Lawrence M. Baskir (Electronically Filed December 21, 2007)

PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION TO SUBSTITUTE TRANSCRIPT Defendant has moved to dismiss this action for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) and 28 U.S.C. § 1500 on the ground that Plaintiff's separate action for an equitable accounting pending in the United States District Court for the District of Columbia is the same claim that it seeks to vindicate here. It is well-settled, however, that jurisdiction is established at the time of filing and under § 1500 a later-filed district court action does not divest the Court of Federal Claims of jurisdiction that was earlier properly established. See Hardwick Bros. Co. II v. United States, 72 F.3d 883, 886 (Fed. Cir. 1995). This timing issue is dispositive of this Court's jurisdiction. See id.

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In response to Defendant's Motion, Plaintiff, the Salt River PimaMaricopa Indian Community ("Salt River"), submitted evidence in the form of an Affidavit of the person who filed each action, Alexis Applegate, as well supporting evidence, showing that its action in the District Court was not pending at the time Salt River filed this action. On November 14, 2007, this Court scheduled an evidentiary hearing to address issues raised by Defendant's Motion. At this evidentiary hearing, which was held on

December 10, 2007, Ms. Applegate testified at length about the filings she completed on December 29, 2006, including the Complaint she filed to initiate this action and the District Court action. Ms. Applegate testified that she filed this action prior to filing a Complaint on behalf of Salt River in the District Court. On December 17, 2007, Salt River's counsel received a copy of the transcript of the December 10th evidentiary hearing from Heritage Reporting Corporation ("Heritage"). See Transcript received on December 17, 2007 ("December 17th Transcript"), attached hereto as Exhibit A. The December 17th Transcript was transcribed from a digital recording provided by this Court to Heritage. See id. This transcript contained obvious errors and over 168 "inaudible" notations rendering critical portions of transcript unintelligible and unreliable. See id.
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Shortly after Salt River's counsel alerted the Court to the problem, the Court provided Salt River's counsel with the same digital recording that it had provided to Heritage. Heritage also produced a revised transcript of the December 10th Hearing to Salt River's counsel on December 20, 2007 ("December 20th Transcript") and represented that this was the final revised version of the transcript. See December 20, 2007 e-mail from

LaShonne Robinson to Catherine Munson and attached Transcript, attached hereto as Exhibit B. The December 20th Transcript also contained numerous "inaudible" notations and many errors which affected testimony bearing directly on the issue of when Ms. Applegate filed the two Complaints. By way of example, the December 20th Transcript shows Salt River's counsel as having asked Ms. Applegate: "And what time on Thursday night did you file the Court of Federal Claims complaint?" It is not disputed that Ms. Applegate filed the Court of Federal Claims Complaints on Friday, December 29th. It is also clear from the recording that Salt River's counsel instead asked Ms. Applegate: "And what time on December 29th did you file the Court of Federal Claims complaint?" See Red-lined version of the transcript

showing the corrections, attached hereto as Exhibit C.

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Because the transcript provided by Heritage is unreliable, counsel for Salt River corrected the December 20th Transcript by listening to the digital recording provided by the Court and transcribing corrections. See Exhibit C. 1 Salt River respectfully requests that this Court order that the corrected version of the Transcript, which is attached hereto as Exhibit D, substitute the transcript provided by Heritage and be treated by the Court as the official transcript of the December 10, 2007 Hearing. Salt River further requests that the Court consider this motion on an expedited basis so as not to cause further delay in the briefing caused by an unforeseen problem caused by no fault of the parties, which Salt River has worked diligently to rectify in a timely manner. In addition, in Ak-Chin Indian Community v. United States, No. 06-932L, Judge Hewitt has ordered that the parties provide additional briefing based on Ms. Applegate's December 10, 2007 testimony in this case, that Defendant submit its brief by January 4 and Ak-Chin respond by January 11. This briefing cannot be complete until a the errors in Heritage's transcripts are resolved. There is no just reason to delay those proceedings.

Even after conducting a thorough review of the recording, and creating a more accurate transcript of the December 10, 2007 proceeding, portions of the recording remain indiscernible and are designated with an "inaudible" notation. Therefore, additional supplementation of the record may be required at a later date.
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Salt River appreciates that Defendant's counsel must be provided the opportunity to listen to the digital recording provided by the Court and compare it to Exhibit D. After having conducted the same review, counsel for Salt River submits that this review should take no longer than one or two business days. Accordingly, Salt River requests that Defendant be given until December 31st to respond to the instant motion.

This the 21st day of December, 2007.

Respectfully submitted,

/s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail [email protected] KILPATRICK STOCKTON, LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

Case No. 06-943L Judge Lawrence M. Baskir Electronically filed on December 21, 2007

CERTIFICATE OF SERVICE I hereby certify that the foregoing PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION TO SUBSTITUTE TRANSCRIPT was

electronically filed using the Court's ECF system and that the below-listed counsel are ECF users and will be served via the ECF System: Kevin J. Larsen, Esq. Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663

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This 21st day of December, 2007. /s/ Keith Harper KEITH HARPER D.C. Bar No. 451956 E-mail [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 E-mail [email protected] Kilpatrick Stockton LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800 Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community

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