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

Case 1:05-cv-00881-VJW

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Filed 11/21/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMERCE FUNDING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-881C (Judge Wolski)

JOINT PRELIMINARY STATUS REPORT Pursuant to Appendix A of the Rules of the United States Court of Federal Claims ("RUSCFC"), counsel for plaintiff and defendant respectfully submit the following joint preliminary status report. 4a. Jurisdiction:

The plaintiff believes that the Court possesses jurisdiction to entertain and to decide this action pursuant to the Tucker Act, 28 U.S.C. § 1491. Defendant is currently unaware of any

reason why the Court would not have jurisdiction to entertain and decide this action. b. Consolidation:

The parties agree that this case should not be consolidated with any other case. c. Bifurcation:

The parties currently believe that this case should not be bifurcated.

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d.

Deferral:

The parties agree that this case should not be deferred pending the resolution of any other case, or transferred or remanded to another tribunal. e. Remand/Suspension:

Neither party seeks a remand or suspension at this time. f. Joinder:

Neither party intends to join additional parties at this time. Pursuant to RUSCFC 14(a), however, if defendant learns

during discovery in this case that ICES, Ltd. has not reimbursed plaintiff for the amount set forth in invoice number 20, defendant intends to seek authorization to file a contingent claim in this case, against the assignor, ICES, Ltd., in the amount of $31,870.96. g. Dispositive Motions:

Counsel for both parties anticipate that they may file dispositive motions upon certain issues in this case. Counsel

will notify the Court should they determine that a dispositive motion is appropriate. The parties request that they be allowed to conduct discovery to and until March 30, 2007. The parties request that

they be allowed to file a joint status report regarding further proceedings on April 30, 2007.

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h.

Relevant Issues:

Based upon a preliminary review of the case, the parties believe that the following issues are relevant in this case: 1. Whether the requirements of 31 C.F.R. § 285.5(e)(6) have

been satisfied to authorize the Government to offset assigned payments to recover debts owed to the Government by ICES, Ltd.; 2. If the answer to issue number one above is negative,

whether plaintiff may recover pursuant to the theory of unjust enrichment, and if so, in what amount; 3. If the answer to issue number one above is negative,

whether plaintiff may recover pursuant to an equitable lien theory, and if so, in what amount. Plaintiff believes that the following issue is also relevant: 1. Whether the plaintiff has a right to payment from the

defendant for invoice number 20 in the amount of $31,870.96, which was wrongfully paid by defendant to ICES Ltd. over the Novice of Assignment to plaintiff. Defendant believes that the following issues are also relevant: 1. Whether defendant wrongfully paid the amount set forth

in invoice number 20 to ICES, Ltd.; 2. If the answer to issue one above is positive, whether

plaintiff recovered from ICES, Ltd. the amount set forth in

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invoice number 20; and 3. If the answer to issue number two is negative, whether

defendant is liable to plaintiff for the amount set forth in invoice number 20. i. Settlement:

The parties will explore the possibility of settlement, if appropriate, as this case progresses and each party has more complete information regarding the facts of this case. The parties reserve their right to request a full evidentiary trial of this matter and do not request an arbitration, mediation, or paper trial at this time. The parties

will continue to consider these alternatives to litigation throughout the course of these proceedings and will promptly advise the Court of any further developments. j. Trial:

The parties anticipate that a trial will be necessary in the event that this case is not resolved through dispositive motions and/or settlement. The parties request that they be allowed to

file a status report 30 days after the close of discovery regarding the necessity for trial. k. Electronic Case Management Needs:

The parties recognize that this is an electronically-managed case and intend to file all documents in accordance with the Court's procedures for electronic filings.

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l.

Additional Information:

The parties are not aware of any additional information which the Court should be made aware of at this time. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director s/ Heather R. Sullenberger HEATHER R. SULLENBERGER 4113 Maple Street Fairfax, VA 22030 Tele: (703) 273-4012 Fax: (703) 273-4013 s/ Lauren S. Moore LAUREN S. MOORE Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 307-6288 Fax: (202) 514-8640 Attorneys for Defendant

Attorney for Plaintiff NOVEMBER 21, 2006

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CERTIFICATE OF FILING I hereby certify that on the 21st day of NOVEMBER, 2006, 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 and that parties may access this filing through the Court's system. /s/ Lauren S. Moore

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