Free Motion to Consolidate Cases - District Court of Federal Claims - federal

Case 1:06-cv-00409-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) R,R,M & C PARTNERS, L.L.C., BY AND ) THROUGH R,R,M & C GROUP, L.P., A ) NOTICE PARTNER, ) Plaintiff, ) ) v. ) No. 06-409T ) (Judge Emily C. Hewitt) THE UNITED STATES, ) Defendant. ) __________________________________________) ) R,R,M & C GROUP, L.P., BY AND THROUGH ) ROBERT SANDS, A NOTICE PARTNER, ) ) Plaintiff, ) ) v. ) No. 06-410T ) (Judge Emily C. Hewitt) THE UNITED STATES, ) 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. ) No. 06-411T ) (Judge Emily C. Hewitt) THE UNITED STATES, ) ) Defendant. ) ) __________________________________________)

Case 1:06-cv-00409-ECH

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__________________________________________ ) ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) Defendant. ) __________________________________________) ) BETA PARTNERS, L.L.C, BY AND THROUGH ) ALPHA I, L.P., A NOTICE PARTNER ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) Defendant ) __________________________________________) ) MICKEY MANAGEMENT, L.P., BY AND ) THROUGH MARILYN SANDS, A NOTICE ) PARTNER, ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) Defendant. ) __________________________________________) ) M, L, R & R, BY AND THROUGH RICHARD E. ) SANDS, TAX MATTERS PARTNER, ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) Defendant. ) __________________________________________) ALPHA I, L.P., BY AND THROUGH ROBERT SANDS, A NOTICE PARTNER

No. 06-407T (Judge Emily C. Hewitt)

No. 06-408T (Judge Emily C. Hewitt)

No. 06-810T (Judge Emily C. Hewitt)

No. 06-811T (Judge Emily C. Hewitt)

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Case 1:06-cv-00409-ECH

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JOINT MOTION FOR PRE-TRIAL CONSOLIDATION Plaintiffs, R,R,M & C Partners, L.L.C. ("Partners"), R,R,M & C Group, L.P ("Group"), CWC Partnership I ("CWC"), Alpha I, L.P. ("Alpha"), Beta Partners, L.L.C. ("Beta"), Mickey Management, L.P. ("Mickey Management"), and M,L,R & R and defendant, the United States, by and through their respective undersigned counsel of record, and pursuant to Rule 42.1 of the Rules of the United States Court of Federal Claims, file this Joint Motion to Consolidate the above-captioned cases for pre-trial proceedings.1 Notices of Directly-Related and IndirectlyRelated Cases were filed along with the Complaints in each of these cases pursuant to Rule 40.2(a) and (b).2 I. Procedural History On June 30, 2006, Case No. 1:06-cv-00411, styled CWC Partnership I, By and Through Trust FBO Zachary Stern U/A Fifth G, Andrew Stern and Marilyn Sands, Trustees, a Notice Partner v. United States (the "CWC case"), Case No. 1:06-cv-00407, styled Alpha I, L.P., by and through Robert Sands, a Notice Partner v. United States (the "Alpha case"), and Case No. 1:06cv-00408, styled Beta Partners, L.L.C., by and through Alpha I, L.P., a Notice Partner v. United States (the "Beta case") were transferred to Judge Emily C. Hewitt based on the plaintiffs' motions to transfer. At that time, related cases Case No. 1:06-cv-00409, styled R,R,M & C Partners, L.L.C., By and Through R,R,M & C Group, L.P., a Notice Partner v. United States (the "Partners case") and Case No. 1:06-cv-00410, styled R,R,M & C Group, L.P., By and Through

The parties believe that there are sufficient similarities and common issues of fact to warrant the consolidation of all seven cases for pre-trial purposes, including discovery, but the parties wish to reserve the issue of consolidation for trial for later determination. 2 True and correct copies of the Notices describing the relationships between the cases are attached hereto as Exhibits A ­ G. 3

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Case 1:06-cv-00409-ECH

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Robert Sands, a Notice Partner v. United States (the "Group case") were already assigned to Judge Emily C. Hewitt. On November 30, 2006, Case No. 1:06-cv-00811, styled M,L,R & R by and through Richard E. Sands, Tax Matters Partner v. United States (the "M,L,R & R case") and Case No. 1:06-cv-00810, styled Mickey Management, L.P., by and through Marilyn Sands, A Notice Partner v. United States (the "Mickey Management case") were filed with this Court and assigned to Judge Emily C. Hewitt. II. Discussion Rule 42(a) provides that when actions involving a common question of law or fact are pending before the Court, it may order all actions consolidated. It is within the Court's "broad discretion" to order consolidation. See, e.g., Cienega Gardens v. United States, 62 Fed. Cl. 28, 32 (2004). In determining whether consolidation is appropriate, the court should consider: 1) whether common questions of law or fact are involved; 2) whether consolidation would avoid unnecessary costs; and 3) whether the "interest of judicial economy" outweighs the "potential for delay, confusion, and prejudice that may result from consolidation." Id. at 31. Other factors considered include "the risk of inconsistent adjudication of common factual and legal issues, the burden on the parties, witnesses, and judicial resources posed by multiple lawsuits, the length of time required to conclude multiple lawsuits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives." Id. at 31. A final consideration is the procedural posture of earlier-filed and later-filed cases. See, e.g., AT&T Corp. v. United States, 69 Fed. Cl. 675, 676-78 (2006).

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1. Common Questions of Law or Fact Some common questions of law and fact are involved in the seven above-captioned cases, and each of the seven above-captioned cases are directly or indirectly related. The Partners and the Group cases involve the same set of transactions and involve the same factual and legal issues. The Alpha, Beta, M,L,R & R, and Mickey Management cases all involve a second set of transactions and involve the same factual and legal issues. The CWC case involves common derivative factual and legal issues with those in the Alpha, Beta, Group, Partners, and M,L,R & R cases. The Partners and Group cases, on the one hand, and the Alpha, Beta, M,L,R & R, and the Mickey Management cases, on the other, while presenting some common legal and factual issues, also present several different issues. Most particularly, an issue exists in the Partners and Group cases involving charitable remainder trusts that is not present in the Alpha, Beta, M,L,R & R, and Mickey Management cases. Notwithstanding the existing differences, the parties believe that there are sufficient similarities and common issues of fact to warrant the consolidation of all seven cases for pre-trial purposes, including discovery. However, the parties are not yet in position to recommend that all seven cases be consolidated for trial, given the differences between the two groups of cases. 2. Avoidance of Unnecessary Costs Consolidation for pre-trial purposes would avoid unnecessary costs, particularly for purposes of factual discovery and expert discovery. Several possible witnesses are involved in a number of the above-captioned cases, and many documents are relevant to several of the abovecaptioned cases. The same experts are likely to be used by the parties in each of the cases. Moreover, several anticipated dispositive motions will be applicable to all seven cases.

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3. Interest of Judicial Economy Here, because all seven cases are before Judge Emily C. Hewitt, consolidation for pretrial purposes would promote the efficient determination of the actions, and the efficiencies gained will far outweigh any potential for delay, confusion, or prejudice. 4. Other Considerations Here, consolidation for pre-trial purposes would reduce the risk of inconsistent adjudication of the issues common to all seven cases and would conserve the Court's and the parties' resources. Consolidation for pre-trial purposes would promote the efficient determination of the actions, particularly as the earlier-filed cases have not yet commenced discovery or advanced so far as to make consolidation inappropriate.

WHEREFORE, the parties jointly request that the above-referenced actions be consolidated for pre-trial purposes.

Respectfully submitted, /s/ Lewis S. Wiener LEWIS S. WIENER Sutherland, Asbill & Brennan 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004 Tel.: (202) 383-0140 Fax: (202) 637-3593 Email: [email protected] Of Counsel: January 29, 2007 N. Jerold Cohen Thomas A. Cullinan Joseph M. DePew Julie P. Bowling Sutherland Asbill & Brennan LLP /s/ Thomas M. Herrin THOMAS M. HERRIN Attorney, Tax Division Department of Justice 717 N. Harwood, Suite 400 Dallas, Texas 75201 Tel: (214) 880-9745 Fax: (214) 880-9741 Attorney for Defendant

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999 Peachtree Street, N.E. Atlanta, Georgia 30309 (404) 853-8000 (404) 853-8806 (fax) Kent L. Jones Sutherland, Asbill & Brennan 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004 Tel.: (202) 383-0732 Fax: (202) 637-3593 Attorney for Plaintiffs January 29, 2007

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CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that service of the foregoing Joint Motion for Pre-Trial Consolidation has been made on January 29, 2007 by mailing a copy thereof to. Thomas M. Herrin Attorney, Tax Division Department of Justice 717 N. Harwood, Suite 400 Dallas, TX 75201

/s/ Lewis S. Wiener LEWIS S. WIENER Sutherland, Asbill & Brennan 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004 Tel.: (202) 383-0140 Fax: (202) 637-3593 Email: [email protected] Of Counsel: N. Jerold Cohen Thomas A. Cullinan Joseph M. DePew Julie P. Bowling Sutherland Asbill & Brennan LLP 999 Peachtree Street, N.E. Atlanta, Georgia 30309 (404) 853-8000 (404) 853-8806 (fax) Kent L. Jones Sutherland, Asbill & Brennan 1275 Pennsylvania Ave., N.W. Washington, D.C. 20004 Tel.: (202) 383-0732 Fax: (202) 637-3593 Attorney for Plaintiffs January 29, 2007