Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:05-cv-01020-MMS

Document 30

Filed 07/21/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-1020C (Judge Sweeney)

DEFENDANT'S MOTION FOR LEAVE TO FILE CORRECTED BRIEF Pursuant to Rules 6 and 6.1 of the Court's Rules, defendant, the United States, respectfully requests the Court to grant the Government leave to file a corrected copy of the dispositive motion we timely filed on July 12, 2006. The proposed corrected brief is attached, together with a "redline" comparing the corrected brief to the original. Our July 12 motion contained errors, which we did not discover until after filing the motion electronically. We seek leave only to correct these errors. There are no changes to the appendix which accompanied the July 12 brief. We request permission to file a corrected brief at this time, rather than simply addressing the errors in our reply, in order to ensure that the July 12 motion accurately reflects our legal position and that plaintiff has an accurate statement of our legal position when responding to the motion. None of our corrections will significantly add to plaintiff's burden in responding. The corrected brief makes the following corrections to the July 12 brief: 1. On page 4, we delete the words, "A precursor of," correcting a factual misstatement. 2. We cut and paste a discussion of the definition of "facility" under the Comprehensive Environmental Response, Control and Liability Act of 1980, 42 U.S.C. § 9601(9), from page 14

Case 1:05-cv-01020-MMS

Document 30

Filed 07/21/2006

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to page 23, with minor alterations in syntax to reflect the argument's new location. This change reflects our decision to omit the "facility" discussion from our contractual arguments, while retaining it among the statutory arguments later in the brief, where it already appeared. 3. On pages 13 and 14, we complete the legal term "useful product," so that it now reads, "useful product used for its intended purpose." 4. On page 17, we complete the phrase, "because it was not a hazardous substance" so that it now reads, "because it was not a hazardous substance that was stored, released, or disposed of on the property." Granting this motion will ensure that the Court and plaintiff receive an accurate statement of our position in our motion to dismiss, immediately. No prejudice, delay, or undue inconvenience should result. CONCLUSION For the foregoing reasons, we respectfully request that the Court grant our motion for leave to file a corrected brief. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/David M. Cohen DAVID M. COHEN Director

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Case 1:05-cv-01020-MMS

Document 30

Filed 07/21/2006

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OF COUNSEL: MARY RAIVEL Senior Trial Attorney Navy Litigation Office Washington, D.C. s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 305-7644 Attorneys for Defendant July 21, 2006

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Case 1:05-cv-01020-MMS

Document 30

Filed 07/21/2006

Page 4 of 4

CERTIFICATE OF FILING I certify that on July 21, 2006, the attached motion was filed electronically. I understand that service is complete upon filing and that parties and others may access the filing through the Court's system. s/Kyle Chadwick

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