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

Case 1:05-cv-00930-FMA

Document 9

Filed 12/29/2005

Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORP., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-930C (Judge Allegra)

JOINT PRELIMINARY STATUS REPORT Pursuant to the Rules of the United States Court of Federal Claims ("RCFC"), Appendix A, the parties submit this Joint Preliminary Status Report. a. Does the Court have jurisdiction over the action? North Star Alaska Housing Corp. asserts jurisdiction pursuant to 28 U.S.C. § 1491, et seq. and 41 U.S.C. § 601, et seq. The United States states that the Court does not possess jurisdiction to entertain claims of monetary damage related to Unit 623, Unit 1256, Unit 861, Unit 963, or whether the Birchwood Homes lease permits the Government to hire contractors other than North Star to perform repair work and maintenance on Birchwood housing units, because North Star has not presented a claim for a sum certain relating to those issues in any of the requests for contracting officer decisions that underlie this case. In

addition, the United States states that the Court does not possess jurisdiction to entertain the claim that the Government has diminished the value of Birchwood Homes, because North Star

Case 1:05-cv-00930-FMA

Document 9

Filed 12/29/2005

Page 2 of 6

has not presented that claim to the contracting officer in any of the requests for contracting officer decisions that underlie this case. Otherwise, the United States knows of no reason to

question the Court's jurisdiction, at this time. b. Should the case be consolidated with any other case and the reasons therefor? The case should be consolidated with Case No. 04-1396C (Fed. Cl.), because the two cases involve the same parties, interpretation of the same lease, similar issues, and many of the same witnesses. In addition, both cases are at the same stage of

litigation; that is, no discovery has been conducted in either case. c. Should the trial of liability and damages be bifurcated and the reasons therefor? A trial of liability and damages should not be bifurcated. d. Should further proceedings in this case be deferred pending consideration of another case before this Court or any other tribunal and the reasons therefor? This case should be deferred pending consideration of Case No. 98-168C because both cases involve the Government's work authorization and downtime calculation practices, and Case No. 98-168C was tried in August 2005. e. Will a remand or suspension be sought and the reasons therefor and the proposed duration? A remand or suspension will not be sought. f. Will additional parties be joined? Additional parties will not be joined.

Case 1:05-cv-00930-FMA

Document 9

Filed 12/29/2005

Page 3 of 6

g.

Does either party intend to file a motion pursuant to RCFC 12(b), 12(c), or 56 and, if so, what is a proposed schedule for the intended filing? Neither party, at this time, intends to file a motion

pursuant to RCFC 12(b), 12(c), or 56. h. What are the relevant factual and legal issues? Whether the Government has violated a Lease for Birchwood Homes, entered into between North Star and the Government on November 6, 1987, for the purpose of Army housing by Lease by (1) diminishing the value of North Star's asset by (a) applying a double standard with respect to matching of adjacent surfaces, (b) refusing to authorize necessary and required maintenance and repair, and (c) permitting companies other than North Star to accomplish maintenance and repairs that North Star is entitled to perform; (2) wrongfully reducing North Star's rent; and (3) dealing with North Star in bad faith. i. What is the likelihood of settlement? dispute resolution contemplated? Is alternative

The parties are negotiating in an attempt to settle this case along with Case Nos. 98-168C, 02-1632C, 03-2699C, and 041396C (Fed. Cl.), but alternative dispute resolution is not contemplated. j. Do the parties anticipate proceeding to trial? Does any party, or do the parties jointly, request expedited trial scheduling? What is the requested place of trial? If the case does not settle, the parties anticipate that the case will proceed to trial. The parties do not request an

expedited trial scheduling, and request Fairbanks, Alaska as the

Case 1:05-cv-00930-FMA

Document 9

Filed 12/29/2005

Page 4 of 6

place for trial. k. Are there special issues regarding electronic case management needs? There are no special issues regarding electronic case management needs. l. Is there other information of which the Court should be aware at this time? There is no other information of which the Court should be aware at this time. Discovery Plan, if the case is not deferred: June 30, 2006 August 14, 2006 September 29, 2006 October 13, 2006 Completion of fact discovery; Disclosure of expert opinions; Disclosure of expert rebuttal opinions; Completion of expert discovery.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Donald E. Kinner DONALD E. KINNER Assistant Director

Case 1:05-cv-00930-FMA

Document 9

Filed 12/29/2005

Page 5 of 6

s/ Paul W. Killian PAUL W. KILLIAN Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Ave., N.W. Washington, DC 20036 Tel: (202) 887 4000 Fax: (202) 887-4288 Attorney for Plaintiff December 29, 2005

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 514-4325 Facsimile: (202) 514-7965 OF COUNSEL ANA-VALLI GORDON Assistant District Counsel United States Army Corps of Engineers Galveston District Attorneys for Defendant December 29, 2005

Case 1:05-cv-00930-FMA

Document 9

Filed 12/29/2005

Page 6 of 6

Certificate of Filing I hereby certify that on December 29, 2005, a copy of the foregoing Joint Preliminary Status Report was filed electronically. I understand that notice of this filing will be

sent to all parties by operation of the Court's electronic filing system. system. Parties may access this filing through the Court's

s/Timothy P. McIlmail