Free Notice of Indirectly Related Case(s) - District Court of Federal Claims - federal

Case 1:06-cv-00224-MCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-224 T (Judge Lawrence J. Block)

JOHN HERDA and MARGARET HERDA et. al., Plaintiffs, v. THE UNITED STATES, Defendant. ______________ NOTICE OF INDIRECTLY RELATED CASES

Defendant files this notice pursuant RCFC 40.2(b). There are two other cases before the Court that present common issues of law and fact with the present case, and, in defendant's view, transfer of the three cases to a single judge would significantly promote the efficient administration of justice. The three cases, in order of filing - earliest to latest, are: 1) John Herda and Margaret Herda et. al. v. U.S., Fed. Cl. No. 06-224 T; 2) Lawrence S. Lewin and Marion E. Lewin v. U.S., Fed. Cl. No. 06-751 T; and 3) Gordon R. Cooke and Jennifer L. Cooke, Fed. Cl. No. 06-850 T. Plaintiffs in all three are represented by attorneys from the same law firm, Redding & Associates, P.C. Thomas Redding is attorney of record in Herda and Lewin, Sallie Gladney is attorney of record in Cooke, and, where not attorney of record, Redding, Gladney, and Teresa Womack are listed as of counsel on the complaints. The undersigned attorney of record has appeared on behalf of the United States in all three cases. Comparison of the allegations in the three complaints leads to the conclusion that the -1-

Case 1:06-cv-00224-MCW

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Filed 12/29/2006

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cases share common issues of law and fact (individual issues of law and fact may also exist). Among other common allegations, the complaints allege that one or more plaintiffs owned limited partnership interests in Dillon Oil Technology Partners ("Dillon"), that Dillon was one of the partnerships in the "Electra" project (the complaint in Herda also alleges that certain plaintiffs owned limited partnership interests in Crowne Oil Technology Partners ("Crowne") and that Crowne was one of the partnerships in the "Electra" project), that plaintiffs' refund claims are "due to the loss" plaintiffs "realized on the worthlessness and termination of" Dillon and/or Crowne "pursuant to Rev. Rul. 93-80," that, as the result of common litigation at the partnership level in the United States Tax Court, basis in plaintiffs' partnership interests was restored, and that plaintiffs' underlying refund claims were timely filed with the IRS pursuant to 26 U.S.C. § 6230(c)(2)(B). At present, Herda is in discovery, and Lewin and Cooke are in the pre-answer stage. Plaintiffs' counsel and of counsel agree with defendant's counsel that Herda, Lewin, and Cooke are indirectly related. In Cooke, plaintiffs filed a "Notice of Indirectly Related Cases," stating that Cooke is indirectly related to Herda and Lewin. See Notice [Doc. #4], Fed. Cl. No. 06-850 T. Given the common issues of law and fact present in Herda, Lewin, and Cooke, defendant believes that transfer would significantly promote the efficient administration of justice. A single judge could adjudicate fully one of the three and, thus familiar with the common factual and legal background, review a joint status report in which the parties express their views on how the outcome of the first impacts the other two, and order appropriate further proceedings. Defendant believes that selection of a transferee judge lies fully within the discretion of the

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Case 1:06-cv-00224-MCW

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Court. In addition, currently pending before the Court are two other cases that arise out of the Electra partnership context, Thomas H. McGann and Evelyn G. McGann v. U.S., Fed. Cl. No. 05-1189 T, and Lloyd W. Bailey et. al. v. U.S., Fed. Cl. No. 06-222 T. In McGann, defendant moved to dismiss the complaint for lack of jurisdiction, plaintiff responded, and defendant replied. In addition, plaintiffs filed a sur-reply, and defendant has submitted a response to plaintiffs' sur-reply under a motion for leave to file. Bailey is stayed pending a decision on defendant's motion to dismiss in McGann. McGann and Bailey do not have the partnership termination/basis restoration claims asserted in Herda, Lewin, and Cooke, but involve claims for refund of tax motivated interest. In addition, one of the issues briefed in McGann is the timeliness of an administrative refund claim under 26 U.S.C. § 6230(c)(2)(A). That provision does not appear to be at issue in Herda, Lewin, and Cooke. Given the differences in the legal claims, defendant does not think McGann and Bailey should be linked with Herda, Lewin, and Cooke. Finally, it should be noted that some AMCOR cases include partnership termination/basis restoration and/or tax motivated interest claims that share at least some legal issues in common with the similar claims in Herda, Lewin, and Cooke, and/or McGann and Bailey. Pursuant to RCFC 40.2(b)(2), after this notice is filed, a copy of it will be served on the attorney of record in Cooke via regular mail.

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Case 1:06-cv-00224-MCW

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Respectfully submitted,

s/Bart D. Jeffress BART D. JEFFRESS Attorney of Record U.S. Justice Dept., Tax Division Court of Federal Claims Section P.O. Box 26, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 307-6496 FAX: (202) 514-9440 EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section s/Steven I. Frahm Of Counsel December 29, 2006

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