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

Case 1:05-cv-01065-CFL

Document 12

Filed 04/24/2006

Page 1 of 6

1 2 3 4 5

John Randall Jefferies (No. 011542) FENNEMORE CRAIG, P.C. 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Facsimile: (602) 916-5513 Email: [email protected] Attorneys for C.S. McCrossan, Inc.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

C.S. MCCROSSAN, INC. v. THE UNITED STATES; acting by and through the DEPARTMENT OF TRANSPORTATION and the FEDERAL HIGHWAY ADMINISTRATION

No. 05-1065C JOINT PRELIMINARY STATUS REPORT (Assigned to the Honorable Charles F. Lettow)

JOINT PRELIMINARY STATUS REPORT Pursuant to the case management procedure delineated in

Appendix A, § III of the Rules of the United States Court of Federal Claims ("RCFC"), the parties file this Joint Preliminary Status Report. I. Jurisdiction The Court possesses jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. § 609. II. Consolidation The parties are unaware of any other case with which this case should be consolidated.

Case 1:05-cv-01065-CFL

Document 12

Filed 04/24/2006

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

III. Bifurcation The parties agree that this case should not be bifurcated. IV. Deferral of Further Proceedings The parties are unaware of any reason to defer any The

proceedings in this case based upon other pending cases.

parties are unaware of any basis for transferring this case to another tribunal, or of any related case pending in another

tribunal. V. Remand or Suspension Neither suspension. VI. Additional Parties The parties do not intend to join any other parties at this time. VII. Dispositive Motions The parties have no current plans for filing dispositive motions, but it is too early in the proceedings to determine whether dispositive motions under RCFC 56 may be appropriate. VIII. Relevant Issues At this point in the case, the parties have identified the following issues relevant to this action. Additional relevant party presently intends to seek a remand or

issues may become apparent as the case proceeds. 1. adjustment Whether for McCrossan is entitled cost to an equitable based upon

horizontal

drilling

overruns,

theories of breach of contract, negligence, misrepresentation, and/or constructive change, and, if so, how much.

- 2 -

Case 1:05-cv-01065-CFL

Document 12

Filed 04/24/2006

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

2.

Whether for

McCrossan earthwork

is

entitled based

to upon

additional theories of

compensation

overruns,

breach of contract and/or constructive change, and, if so, how much. 3. Whether McCrossan is entitled to additional

compensation and a remission of all liquidated damages for delays resulting excavation geological from, among other things, weather, and design and unsuitable changes,

materials, conditions,

configuration animal

restrictions,

unanticipated

waste disposal, based upon theories of substantial completion, breach of contract, breach of duty to cooperate, and/or

constructive change, and, if so, how much. 4. Whether McCrossan is entitled to additional

compensation for excavation performed in repair areas, based upon theories of breach of contract and/or constructive change, and, if so, how much. 5. Whether McCrossan is entitled to additional

compensation for producing subbase and backfill and an equitable adjustment for transporting and crushing the resulting waste, based upon theories of breach of contract, constructive change, and/or breach of implied warranty of suitability and accuracy, and, if so, how much. 6. backfill, Whether McCrossan is entitled to compensation for curb based upon theories of breach of contract and/or

constructive change, and, if so, how much. 7. Whether McCrossan is entitled to compensation for

- 3 -

Case 1:05-cv-01065-CFL

Document 12

Filed 04/24/2006

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

crusher fines used as topping material to plate rock cuts, based upon theories of breach of contract and/or constructive change, and, if so, how much. 8. Whether McCrossan's claims are barred by the doctrines

of payment, estoppel, and/or accord and satisfaction, and, if so, how much. IX. Settlement and Alternative Dispute Resolution The occur parties the anticipate parties that settlement some form negotiations discovery. of may If

after

have take

conducted place, some

settlement

negotiations

alternative

dispute resolution may be appropriate at that time. X. Anticipate Proceeding to Trial/Expedited Trial As stated above, one or both parties may move for summary judgment pursuant to RCFC 56. If dispositive motions are not

submitted, or if they are not completely dispositive of this action, the parties anticipate proceeding to trial. Neither

party requests expedited trial scheduling.

The parties propose

that the trial take place in either Phoenix or Tucson, Arizona. XI. Electronic Case Management Needs At this time, neither party has any special issues regarding electronic case management needs. XII. Proposed Discovery Schedule The parties intend to conduct simultaneous discovery through interrogatories, requests for admission, requests for production of documents, and depositions. discovery schedule: The parties propose the following

- 4 -

Case 1:05-cv-01065-CFL

Document 12

Filed 04/24/2006

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

Exchange of Initial Disclosures Close of Fact Discovery Plaintiff's Expert Report Due Defendant's Expert Report Due Deadline for Expert Depositions Dispositive Motion Deadline XIII. Other Information for the Court

May 8, 2006 January 20, 2007 February 17, 2007 March 17, 2007 April 28, 2007 May 12, 2007

The parties do not have any additional information for the Court at this time. DATED this 24th day of April, 2006. FENNEMORE CRAIG, P.C. PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN s/ John Randall Jefferies Director John Randall Jefferies Attorneys for C.S. McCrossan, s/ Donald E. Kinner Inc. DONALD E. KINNER Assistant Director By s/ Roger A. Hipp ROGER A. HIPP Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0277 Fax: (202) 307-0972 Attorneys for Defendant

- 5 -

Case 1:05-cv-01065-CFL

Document 12

Filed 04/24/2006

Page 6 of 6

1 2 3 4 5 6 7 8 9

CERTIFICATE OF SERVICE I hereby certify that on April 24, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Roger A. Hipp Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 [email protected]

s/ John Randall Jefferies 10
1775790.2

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

- 6 -