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

Case 1:05-cv-00955-LAS

Document 39

Filed 07/10/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________ No. 05-955 T and 05-954 T (Consolidated on February 22, 2006) (Judge Loren A. Smith) UNICO SERVICES, INC. and D. GORDON POTTER, Plaintiffs v. THE UNITED STATES, Defendant ____________________ DEFENDANT'S MOTION FOR LEAVE TO FILE SURREPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS ____________________

Defendant United States moves this Court for leave to file a surreply brief in support of its motion to dismiss in order to correct the erroneous assertions made by plaintiffs in their surreply brief, which was filed without the Court's permission on June 26, 2006. The United States filed a motion to dismiss on April 28, 2006. Plaintiffs submitted their response on May 30, 2006, and the United States filed its reply on June 14, 2006. In addition, on May 31, 2006, plaintiffs filed a motion for leave to filed a second amended complaint, and the United States responded on June 14, 2006. Thereafter, on June 26,

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Case 1:05-cv-00955-LAS

Document 39

Filed 07/10/2006

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2006, plaintiffs filed a brief that, in part, replies to the United States' response to their motion for leave to file a second amended complaint, and, in part, responds to the United States' reply with respect to the motion to dismiss.1 To the extent plaintiffs' brief replies to the issues raised in the United States' response to their motion for leave to amend, the brief is properly filed and the United States does not seek leave to file an additional brief.2 However, to the extent plaintiffs' brief raises additional arguments in response to the United States' motion to dismiss, their brief is, in fact, a surreply, for which they did not seek leave to file. Plaintiffs argue in their sur-reply brief to the United States' motion to dismiss that the decision in Coltec Industries, Inc. v. United States, 62 Fed. Cl. 716 (Fed. Cl. 2004) provides authority for their argument that they have stated a Fifth Amendment takings clause claim. Plaintiffs' argument, which is raised for the first time in their surreply brief 3 , is wrong. Accordingly, the United States requests leave to file the attached surreply brief in order to address plaintiffs' new argument in support of their alleged takings clause claim.

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Plaintiffs filed an amended brief on June 30, 2006.

The United States disagrees with plaintiffs' arguments in support of their motion to amend. However, since plaintiffs have raised no new arguments in their reply brief on this issue, the United States rests on its earlier-filed response and does not seek leave to file any additional briefing. Plaintiffs briefly discussed this argument during a telephonic conference with the Court on June 6, 2006, but did not raise the argument in writing until the brief filed on June 26, 2006. -23

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Case 1:05-cv-00955-LAS

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Filed 07/10/2006

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Respectfully submitted,

s/Jennifer P. Wilson JENNIFER P. WILSON Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6495 FAX (202) 514-9440 [email protected] EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief s/Steven I. Frahm Of Counsel July 10, 2006

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