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

Case 1:06-cv-00186-LB

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Filed 03/16/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-186C (Judge Block)

DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO WITHDRAW ITS MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 7(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests that this Court grant leave to withdraw our motion for summary judgment in this matter, dated June 23, 2006. We filed our motion for summary judgment pursuant to RCFC 56 because at that time, we believed that the case presented issues of law that were amenable to disposition on summary judgment and that the material facts were not in dispute. We have not yet filed an answer to F&D's complaint in this matter. Plaintiff, Fidelity and Deposit Company of Maryland ("F&D"), responded in opposition to our motion on September 21, 2006. After careful review of F&D's response, its response to our proposed findings of fact, and the appendix attached to its response, we believe that there are material facts in dispute, and the case is not amenable to summary judgment at this time. Summary judgment will not be granted "if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party." Doe v. United States, 48 Fed. Cl. 495, 499 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, we respectfully request that the Court grant us

Case 1:06-cv-00186-LB

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Filed 03/16/2007

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leave to withdraw our motion for summary judgment in this matter. Defendant's counsel has conferred with plaintiff's counsel who states that plaintiff does not oppose this motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

JEANNE E. DAVIDSON Director

s/Donald E. Kinner DONALD E. KINNER Assistant Director

s/Dawn S. Conrad DAWN S. CONRAD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 616-2279 Fax: (202) 305-7643 electronically filed, March 16, 2007

Attorneys for Defendant

Case 1:06-cv-00186-LB

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Filed 03/16/2007

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of March, 2007, a copy of the foregoing "DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO WITHDRAW ITS MOTION FOR SUMMARY JUDGMENT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Dawn S. Conrad