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

Case 1:06-cv-00167-TCW

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Filed 04/24/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________ ) OTAY MESA PROPERTY L.P., et al., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ________________________________ ) No. 06-167 L Hon. Lawrence M. Baskir

JOINT STATUS REPORT

In accordance with this Court's orders of March 17 and April 18, 2008, the parties jointly report to the Court as follows: As the Court is aware, this case has been stayed since October 23, 2007, pending the outcome of a petition for certiorari to the United States Supreme Court in John R. Sand & Gravel Company v. United States, 457 F.3d 1345 (Fed. Cir. 2006). That petition was resolved January 8, 2008, when the Supreme Court held that the six year statute of limitations governing the Court of Federal Claims is jurisdictional. 128 S. Ct. 750, 752 (2008). While this case was stayed, the parties largely completed discovery.

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Case 1:06-cv-00167-TCW

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Through discovery, the parties learned that identical witnesses will testify at the trials in the cases pending before this Court and in International Industrial Park, Inc. v. United States, No. 06-876, and D & D Landholdings v. United States, No. 06-877. Since all the witnesses are located in San Diego, the parties also concluded that trial would need to be held in San Diego, California, with the attendant burden and expense of an out of town proceeding. On February 22, 2008, Judge Wheeler issued his decision in International Industrial Park, Inc. v. United States, No. 06-876, denying the United States' motion to dismiss or in the alternative for summary judgment. Certain aspects of Judge Wheeler's ruling may apply with equal force to the cases pending before this Court and to the D & D Landholdings case. Following his ruling, Judge Wheeler held a status conference to discuss the setting of a trial schedule. Following that status conference, the parties filed a Joint Status Report asking that the International Industrial Park case be bifurcated, and that trial be limited to liability issues. Therefore, the parties plan to jointly move, pursuant to Rule 42 of the Court of Federal Claims that the liability issues in the cases of Otay Mesa L.P., et al v. United States, No. 06-167L (consolidated with Rancho Vista

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Del Mar v. United States, No. 06-1670, and Otay International LLC v. United States, No. 06-1671), and D & D Landholdings v. United States, No. 06-877, be consolidated for purposes of trial on liability with the pending International Industrial Park trial. The parties anticipate filing this motion the week of April 28, 2008. The parties understand that Judge Wheeler will not oppose this consolidation. Counsel for Plaintiffs has conferred with counsel for Defendant, and agreed that this Joint Status Report may be submitted on behalf of both parties. Dated: April 24, 2008. Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

s/ Susan V. Cook SUSAN V. COOK, Senior Attorney Natural Resources Section Environment & Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044 Tele (202) 305-0470 Fax (202) 305-0506 [email protected]

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Attorney for Defendant

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