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

Case 1:06-cv-00411-ECH

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Filed 06/22/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

R,R,M & C Group, L.P., by and through Robert Sands, a Notice Partner, Plaintiff, Case No. 1:06-cv-00410-ECH (EFC) v. United States of America, Defendant.

R,R,M & C Partners, L.L.C., by and through R,R,M & C Group, L.P., a Notice Partner, Plaintiff, Case No. 1:06-cv-00409-ECH (EFC) v. United States of America, Defendant.

CWC Partnership I, by and through Trust FBO Zachary Stern U/A Fifth G, Andrew Stern and Marilyn Sands, Trustees, a Notice Partner, Plaintiff, v. United States of America, Defendant. Case No. 1:06-00411-ECH (EFC)

MOTION TO TRANSFER RELATED CASES

AO 1497525.2

Case 1:06-cv-00411-ECH

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Pursuant to Rules 40.1(b) and 40.2(a)(3), Plaintiff hereby files this Motion to Transfer the above captioned cases to Judge Marian Blank Horn to whom two cases related to the abovecaptioned cases have been assigned. Notices of Directly-Related and Indirectly-Related Cases were filed along with the Complaints in each of these cases pursuant to Rule 40.2(a). True and correct copies of the Notices are attached hereto as Exhibits A-E. The plaintiff in Case No. 1:06-cv-00410, styled R,R,M & C Group, L.P v. United States (the "Group case") is directly-related to the plaintiff in Case No. 1:06-cv-00409, styled R,R,M & C Partners, L.L.C. v. United States (the "Partners case"). The Partners and Group cases, along with the CWC Case, discussed below, were assigned to this Court on May 23, 2006. The plaintiff in the Group case is indirectly related to the plaintiffs in Case No. 1:06-cv-00407, styled Alpha I, L.P. v. United States (the "Alpha case") , Case No. 1:06-cv-00408, styled Beta Partners, L.L.C. v. United States (the "Beta case"), and Case No. 1:06-cv-00411, styled CWC Partnership I v. United States (the "CWC case"). The Alpha and Beta cases were assigned on May 22, 2006 to Judge Marian Blank Horn, prior to the assignment of the Partners, Group and CWC Cases to this Court. Each of the five cases are directly or indirectly related. Specifically, all of the partners in the Group case (Judge Hewitt) are also partners in the Alpha case (Judge Horn). There are common ­ indeed, identical -- legal issues involved in the Alpha and Beta cases (Judge Horn) and in the Group and Partners cases (Judge Hewitt). Group and Partners (Judge Hewitt) also have common legal issues that are in dispute. The CWC case (Judge Hewitt) involves common derivative factual and legal issues with those in the Alpha (Judge Horn), Beta (Judge Horn), Group (Judge Hewitt) and Partners (Judge Hewitt) cases. Common discovery will govern each of theses five related cases. The same experts are likely to

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AO 1497525.2

Case 1:06-cv-00411-ECH

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be used by the parties in each of these cases. Further, several of the anticipated dispositive motions will be applicable to all five of these cases. Rule 42(a) provides, in pertinent part, that when actions involving common questions of law or fact are pending before the court it may order all the actions consolidated. It stands to reason that a transfer of cases in order to effect consolidation should be granted. It is within the Court's "broad discretion" to order consolidation as well as the transfer of cases. See e.g. Cienega Gardens v. United States, 62 Fed. Cl. 28, 32 (2004). In determining if consolidation should be granted, the court looks to whether a "common question of law or fact exist in both cases" and whether the "the interest of judicial economy" outweigh "the potential for delay, confusion and prejudice that may result from consolidation." Id at 31. As set forth above, these five related cases have common issues of law and fact, will utilize common discovery and the parties are likely to utilize their same respective expert(s) witness for all of the five directly or indirectly related cases. Further, many of the motions that Plaintiff anticipates filing would also govern the disposition of these cases. The efficiencies that will be gained from the transfer and consolidation of these cases far outweigh any potential for delay, confusion or prejudice. Transfer and the eventual consolidation of these five related cases under Rule 42 is appropriate and will conserve the court's and the parties' resources and promote the efficient determination of the actions. For these reasons, Plaintiffs respectfully request that the above captioned and titled matters be transferred to Judge Marian Horn where a motion for consolidation of the Alpha, Beta, Group, partners and CWC cases will be filed.

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AO 1497525.2

Case 1:06-cv-00411-ECH

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Filed 06/22/2006

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Dated: June 22, 2006

Respectfully submitted,

/s/ Lewis S. Wiener Lewis S. Wiener SUTHERLAND ASBILL & BRENNAN LLP 1275 Pennsylvania Avenue, NW Washington, D.C. 20004-2415 Tel: (202) 383-0100 Fax: (202) 637-3593 Attorney for Plaintiff

Of Counsel: N. Jerold Cohen Thomas A. Cullinan Joseph M. DePew SUTHERLAND ASBILL & BRENNAN LLP 999 Peachtree Street, NE Atlanta, GA 30308-3996 Tel: (404) 853-8000 Fax: (404) 853-8806 Attorneys for Plaintiff

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AO 1497525.2