Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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DEFENDANT'S EXHIBIT 5

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE AK-CHIN INDIAN COMMUNITY, Plointiflf.
V.

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THE UNITED STATES, Defendant. )

No. 06-932-L

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AFFIDAVIT OF ALEXIS APPLEGATE The undersigned, Alexis Applegate, deposes and states as an affidavit the following: 1. ] am over eighteen years of age and am competent to testify to the facts stated herein. I have personal knowledge of and stale that the facts set forth herein are true and correct. 2. I am a paralegal at Kilpatrick Stockton LLP and have been working at Kilpatrick Stockton LLP since 2000. In my capacity as a paralegal at Kilpatrick Stockton LLP, 1 am responsible for filing pleadings in various courts, including the United Stales Court of Federal Claims and !he United Stales District Court for the District of Columbia. 3. On December 29, 2006, I filed Complaints initialing the following actions in the United Stales Court of Federal Claims: Ak-Chin Indian Community v. United States, 06932L; Passamoquoddy Tribe v. U~Tited States, No. 06-942L; Salt River Pima-Maricopa

US2000 9953070 I

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Italian C'ommzmiO" v. [,b~i/ed States, No. 06-943L; and Tohono O'odham Nation v. United States, 06-944L (collectively, "Court of Federal Claims Actions"). 4. Later, lhal same day, ] filed a Complaint in the United Slates District Court/'or the District of Columbia initiating the aclion styled Ak-ClTin Indian CommuniO; v. Dirk Kempthorne, Ross O. Swimmer and ttemy M. Paulson, Case No. l:06-cv-02245-JR ("AkChin District Court Action"). 5. I am certain that on December 29, 2006, I filed the Complaints initiating the Court of Federal Claims Actions prior to filing the Complaint in the Ak-Chin District Court Action. The Complaint I filed in lhe Ak-Chin District Court Action was the last Complaint that I filed on December 29, 2006.

FURTHER AFFIANT SAYETH NOT.

Sworn to and subscribed before me this /d-~ day of May, 2007, to certify which, witness my hand and official seal.

My commission expires:

SR000236
U52000 995:'070 I

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMAMARICOPA INDIAN COMMUNITY, Plaintiff,
V.

Case No. 06-943L Judge Lawrence M. Baskir

THE UNITED STATES OF AMERICA, Defendant. AFFIDAVIT OF ALEXIS APPLEGATE The undersigned, Alexis Applegate, deposes and states as an affidavit the following:

I am over eighteen years of age and am competent to testify to the facts stated herein. I have personal knowledge of and state that the facts set forth herein are true and correct.
.

I am a paralegal at Kilpatrick Stockton LLP and have been working at Kilpatrick Stockton LLP since 2000. In my capacity as a paralegal at Kilpatrick Stockton LLP, I am responsible for filing pleadings in various courts, including the United States Court of Federal Claims and the United States District Court for the District of Columbia.

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On December 29, 2006, I filed Complaints initiating the following actions in the United States Court of Federal Claims: Ak-Chin Indian Community v. United States, 06-932L; Passamaquoddy Tribe v. United States, No. 06-942L; Salt River Pima-Maricopa Indian Community v. United States, No. 06-943L; and Tohono O'odham Nation v. United States, 06944L (collectively, "Court of Federal Claims Actions"). (True and accurate copies of the Complaints I filed on December 29, 2006 in the Court of Federal Claims Actions are attached hereto as Exhibit A). 4. That same day, I filed a Complaint in the United States District Court for the District of Columbia initiating the action styled Salt River PimaMaricopa Indian Community v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02241-JR ("Salt River District Court Action"). (A true and accurate copy of the Complaint I filed in the Salt River District Court Action on December 29, 2006 is attached hereto as Exhibit

B).

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Keith M. Harper is Counsel of Record in the Court of Federal Claims Actions and Lead Counsel in the Salt River District Court Action. Harper is a partner at Kilpatrick Stockton LLP and my supervisor. 6. On the morning of December 29, 2006, Mr. Harper orally instructed me to file the Complaints initiating the Court of Federal Claims Actions at the earliest possible time on December 29, 2006. Mr. Harper explained that because I had successfully filed the Complaint in the action styled, Tohono Obdham Nation v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02236-JR in the District Court on December 28, 2006, Mr. Harper was comfortable that he and I understood the necessary procedures to perfect the filing of a Complaint in the District Court. (A true and accurate copy of the Complaint I filed in Tohono O'odham Nation v. Dirk Kempthorne, Ross O. Swimmer and Henry M. Paulson, Case No. 1:06-cv-02236-JR on December 28, 2006 is attached here to as Exhibit C). 7. Mr. Harper further explained to me that because Mr. Harper and i had not yet filed any Complaints initiating actions in the Court of Federal Mr.

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Claims, he was not comfortable with the filing procedures in that Court. In addition, the person I spoke with at the Court of Federal Claims was unable to confirm that the Court of Federal Claims would not close early that day due to the upcoming holidays, which I conveyed to Mr. Harper. Mr. Harper instructed that I should file the Complaints initiating the Court of Federal Claims Actions as early as possible, which I understood to mean before filing the Complaints I was planning to file in the District Court that day, including the Complaint initiating the Salt River District Court Action, so that Mr. Harper and I would have sufficient time to cure any potential problems occurring in connection with filing the Complaints in the Court of Federal Claims Actions. 8. To the best of my recollection, I followed Mr. Harper's instructions and I filed the Complaint in the Court of Federal Claims Actions prior to filing the Complaint in the Salt River District Court Action. 9. It is my practice to follow instructions from my supervisors regarding filings. If it is necessary for me to depart from such instructions, it is my practice to report back to my supervisor and explain the reasons for the departure. I do not recall departing from Mr. Harper's direction regarding

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the filing of the Complaints in the Court of Federal Claims Actions and the Salt River District Court Action or any conversation with Mr. Harper in which I explained that the filing of the Complaints in the Court of Federal Claims Actions and the Salt River District Court Action did not occur as he had instructed.

FURTHER AFFIANT SAYETH NOT.

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Alexis A"-pplega~J ,-J Sworn to and subscribed before me this ~--~__- day of August, 2007, to certify which, witness my hand and official seal.

Notar/Public My commission expires:

SR00241