Free Joint Preliminary Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS AMY ASSOCIATES, Plaintiff, v. THE UNITED STATES, ) ) ) ) ) ) ) ) ) )

Case No. 06-397C (Judge Bush)

Defendant.

JOINT PRELIMINARY STATUS REPORT Plaintiff, Amy Associates, and defendant, the United States, respectfully submit this Joint Preliminary Status Report, setting forth the responses called for under Section III of Appendix A to the Rules of this Court: 4(a) Does the Court have jurisdiction over the action? Plaintiff believes this Court has proper jurisdiction over this matter. Defendant states that it has identified no reason

to question the Court's jurisdiction at this time. (b) Should the case be consolidated with any other case and, if so, why?

Plaintiff believes this case should be consolidated with Civil Action No. 06-616 C, Gantt W. Miller, et al. v. The United States, as both matters involve identical Plaintiffs (Gantt Miller is the only remaining authorized agent of Amy Associates); the relevant properties relate to both cases and

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all loan agreements provide similar terms and conditions pursuant to Section 515 of the Housing Act (1949). (c) Should trial of liability and damages be bifurcated and, if so, why?

Plaintiff believes liability has been established in this matter, pursuant to several controlling opinions, most importantly Franconia Associates v. United States, 61 Fed. Cl. 718 (2004). of damages. Accordingly, the only remaining issue is the amount Defendant believes that both liability and damages

must be resolved, and that the liability decision in Franconia is not binding or controlling here. Nevertheless, if liability

is not resolved upon motion and must be tried, the parties do not believe that trial of liability and damages should be bifurcated. (d) Should further proceedings in this case be deferred pending consideration of another case before this Court or any other tribunal and, if so, why?

No. (e) In cases other than tax refund actions, will a remand or suspension be sought and, if so, why and for how long?

No. (f) Will additional parties be joined?

Plaintiff provides no, unless otherwise discovered.

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(g)

Does either party intend to file a motion pursuant to RCFC 12(b), 12(c), or 56 and, if so, what is the schedule for the intended filing?

Depending upon the Government's position, plaintiff intends to file a motion for summary judgment as to liability. The

defendant may file a motion for summary judgment as to liability with respect to all plaintiffs. (h) What are the relevant factual and legal issues?

Plaintiff believes the legal issues regarding liability of the Government have been established in Franconia, and the only remaining factual issues are the ability of Plaintiff to prepay the applicable loans and resulting damages. Defendant believes

that the liability decision in Franconia is not binding or controlling here, and that, in addition to the issues identified by plaintiffs, the following issues are involved: (1) Whether the enactment of the Emergency Low Income

Housing Preservation Act, Pub. L. No. 100-242, 101 Stat. 1877 (1988) ("ELIPHA"), and the Housing and Community Development Act of 1992, Publ. L. No. 102-550, 106 Stat. 3672 (1992) ("the 1992 Act"), constituted a repudiation of Plaintiffs' contracts. (2) Whether the Government's actions of which plaintiffs

complain constituted a breach of plaintiffs' contracts.

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(i)

What is the likelihood of settlement? dispute resolution contemplated?

Is alternative

The parties believe that a reasonable likelihood of settlement exists. The parties will likely need to exchange

relevant documents in order to properly evaluate settlement issues. The parties do not object to the utilization of the

Court's alternative dispute resolution procedures. (j) Do the parties anticipate proceeding to trial? Does either party, or do the parties jointly, request expedited trial scheduling and, if so, why?

Trial will be required if settlement efforts prove unavailing. The parties do not anticipate a request for

expedited trial scheduling. (k) Are there special issues regarding electronic case management needs? No. (l) Is there other information of which the court should be aware at this time? No. 5. Discovery Plan:

In the event the case is stayed pending settlement and settlement efforts prove unsuccessful, factual discovery should be concluded nine (9) months from the termination of the stay, and expert discovery should be concluded twelve (12) months from

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the termination of the stay.

In the event the case is not

stayed, the parties propose that similar guidelines be applied from the time that it is determined that no stay will be imposed. 6. Not applicable. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

/s/ David M. Cohen DAVID M. COHEN Director

/s/ Michael S. Dufault MICHAEL S. DUFAULT Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L St., NW, 8th Floor Washington, D.C. 20530 Phone: (202) 353-7961 Facsimile: (202) 353-7988 September 28, 2006 Counsel for Defendant

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/s/Christopher P. Stroech Christopher P. Stroech, Esq. Arnold, Cesare & Bailey, PLLC P.O. Box 69, 117 E. German Street Shepherdstown, WV 25443 304.876.1575 304.876.9186 (Fax) [email protected] September 28, 2006 Counsel for Plaintiff

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