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

Case 1:05-cv-01175-ECH

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Filed 12/09/2005

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UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) )

RENWICK P. RUSSEL, Plaintiffs, v.

No. 05-1175 L Honorable Emily C. Hewitt

THE UNITED STATES OF AMERICA, Defendant. _________________________________________

DEFENDANT UNITED STATES' MOTION TO CONSOLIDATE PURSUANT TO RCFC 42.1 Pursuant to RCFC 42.1, Defendant United States of America hereby files this Motion to Consolidate. A list of the seven cases that are appropriate for consolidation is attached as Exhibit A. On June 10, 2005, the parties filed a joint notice of indirectly related cases and joint motion to consolidate requesting that Thomas E. Hoey, Jimmy Hicks, and Edward Sexton, d/b/a/ Comvets Mining v. United States, No 05-484 L, (Fed. Cl.) and Relf L. Hudleston v. United States, No. 05-537 L, (Fed. Cl.) be transferred to this Court and consolidated with Gerald E. Roth v. United States, No 05-367 L (Fed. Cl.). On June 30, 2005, Hoey was transferred to this Court, and on October 17, 2005, Hudleston was transferred to this Court. Since the filing of the parties' joint motion and the transfer of Hoey and Hudleston to this Court, the following four new and related causes of action have been filed in the Court of Federal Claims, assigned to Judge Hewitt, and are appropriate for consolidation with Roth, Hoey, and Hudleston: Catherine Paulsen v. United States, No. 05-1082 L; Janet C. Ross v. United States, No. 05-1083 L; George D. Duffy v. United States, No. 05-1173 L; and Renwick P.

Case 1:05-cv-01175-ECH

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Russel v. United States, No. 05-1175 L.1/ As in Roth, Hoey, and Hudleston, the gravamen of the four subsequently filed cases is the alleged taking of a property interest in a patented mining claim without just compensation. All seven cases involve nearly identical issues requiring the determination of whether the Military Lands Withdrawal Act of 1999 was the triggering event that allegedly denied plaintiffs access to their mining claims. All seven properties are located within the same mining district in Churchill County, Nevada.2/ The plaintiffs are all represented by the same counsel. Thus, under Rule 40.2(b), Hoey, Hudleston, Paulsen, Ross, Duffy, and Russel are related to Roth because all seven cases are based on similar legal claims and factual assertions. Consolidation of Roth, Hoey, Hudleston, Paulsen, Ross, Duffy, and Russel pursuant to RCFC 42.1 is appropriate for efficiency purposes. All seven cases involve the same factual background and legal issue. Indeed, a statute of limitations defense may be applicable to all three claims. Therefore, consolidating the cases would streamline matters and reduce inefficiencies present in the current posture of the related cases.3/

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Duffy and Russel have been designated as electronic cases in the court's case management/electronic case filing (CM/ECF) system. Although the complaints in Paulsen and Ross indicate the mining claims at issue in these two cases are located in the Fairfield mining district, Defendant avers the mining claims at issue are actually located in the Fairview mining district.
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Defendant's support of consolidation should not be construed as supporting class certification for these cases. Indeed, defendant would oppose class certification. 2

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Finally, to efficiently and appropriately respond to all seven cases, Defendant respectfully requests that this Court grant it leave to file its Answer or other responsive pleading applicable to all seven cases thirty (30) days after this motion to consolidate has been ruled upon. Dated: December 9, 2005 Respectfully submitted, SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment & Natural Resources Division

s/ Kelle S. Acock _______________________________ KELLE S. ACOCK Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel: 202-305-0428 Fax: 202-305-0267 Email: [email protected]

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EXHIBIT A

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List of cases appropriate for consolidation

Gerald E. Roth v. United States, No 05-367 L, (Hewitt, J.), (Fed. Cl.) Thomas E. Hoey, Jimmy Hicks, and Edward Sexton, d/b/a/ Comvets Mining v. United States, No 05-484 L, (Hewitt, J.) (Fed. Cl.) Relf L. Hudleston v. United States, No. 05-537 L, (Hewitt, J.) (Fed. Cl.) Catherine Paulsen v. United States, No. 05-1082 L, (Hewitt, J.) (Fed. Cl.) Janet C. Ross v. United States, No. 05-1083 L, (Hewitt, J.) (Fed. Cl.) George D. Duffy v. United States, No. 05-1173 L, (Hewitt, J.) (Fed. Cl.) Renwick P. Russel v. United States, No. 05-1175 L, (Hewitt, J.) (Fed. Cl.)