Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00840-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FISHERMAN'S HARVEST, INC., et al., Plaintiffs, v. WEEKS MARINE, INC., Intervenor Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 05-0840 C and No. 05-1044C (CONSOLIDATED) (Chief Judge Damich)

DEFENDANT'S OPPOSITION TO PLAINTIFFS' OPPOSED MOTION TO STRIKE PLEADINGS OF WEEKS MARINE AND OPPOSED MOTION FOR A SEPARATE TRIAL Pursuant to Rule 7(b) of the Rules of the United States Court of Federal Claims ("RCFC"), and this Court's order dated February 22, 2006, defendant, the United States, respectfully submits this opposition to Fisherman's Harvest, Inc. et al.'s ("Fisherman's Harvest") filing captioned "Plaintiff's Response to Third Party Plaintiff Weeks Marine's Motion For Leave to Join as Parties and Joint Claims Against Bertucci Contracting and Luhr Bros., Inc, and Plaintiffs' Opposed Motion to Strike Pleadings of Weeks Marine and Opposed Motion for a Separate Trial" ("Fisherman's Harvest motion"). Fisherman's Harvest's Motion To Strike Defendant, the United States opposes Fisherman's Harvest's motion to strike Weeks' motion. This Court's rules permit a motion to strike "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." RCFC 12(f). Weeks' motion meets none of these criteria. Fisherman's Harvest may oppose Weeks' motion, but Fisherman's Harvest has not identified a basis to strike the pleading. Indeed, Fisherman's Harvest fails to establish that

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Weeks' motion creates any prejudice to them or confusion in this matter. Impresa Construzioni Geom. Domenico Garufi v. United States, 61 Fed. Cl. 175, 177 (2004) (denying plaintiffs' motion to strike "[b]ecause the referenced material creates no prejudice or confusion in this matter and does not bear upon the cost issue decided by the court, . . ."); Lion Raisins, Inc. v. United States, 52 Fed. Cl. 629, 633 n.6 (2002) (denying motion to strike where defendant did not show that filing "created an undue and unforeseen burden on its resources.") (citation omitted); Stearns Co., Ltd. v. United States, 34 Fed. Cl. 264, 268-69 (2002) (denying motion to strike "troubling" affidavit containing legal conclusions, ruling that Court would discount the affiant's "purely legal conclusions"). We defer to the sound discretion of the Court to determine whether Weeks Marine's motion for leave to join should be rejected for failure to include the name of the presiding judge. Fisherman's Harvest also asserts that Weeks' motion is "styled incorrectly." Fisherman's Harvest Motion ¶ 3.09. However, it is Fisherman's Harvest that has filed an improperly captioned motion. In fact, it appears that Fisherman's Harvest has not seen this Court's January 25, 2006, order which modified the official caption of this action. Fisherman's Harvest's Motion for a Separate Trial Defendant, the United States, opposes Fisherman's Harvest's motion for a separate trial. Fisherman's Harvest states that they have not asserted any claims against Weeks. Fisherman's Harvest Motion ¶ 3.12. However, this action was initially filed against Weeks in the United States District Court for the Eastern District of Texas. Fisherman's Harvest then asserts that Weeks' claims are contractual and "can only bring unnecessary delay, burden and expense to Plaintiffs' action." However, Fisherman's Harvest cites no basis for this conclusion. Although we agree with Fisherman's Harvest that Weeks' motion should be denied as this Court is without 2

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jurisdiction to entertain the claims advanced by Weeks, should this Court join the parties, we would oppose separate trials. As contractual claims, it more likely that the claims for indemnity and contribution between the United States and Weeks and between Weeks and Bertucci and Luhr may be resolved by summary judgment. In fact, it seems probable that these issues can be resolved before any trial addressing plaintiffs' damages. Respectfully Submitted,

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director

Of Counsel: s/ David D'Alessandris DAVID D'ALESSANDRIS 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) 307-1011 Fax: (202) 514-8624 Attorneys for Defendant 3

P. ALEX PETTY ANA-VALLI GORDON Assistant District Counsel United States Army Corps of Engineers Galveston District 2000 Fort Point Rd. Galveston, TX 77550

March 1, 2006

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CERTIFICATE OF FILING I hereby certify that on March 1, 2006, a copy of the forgoing "DEFENDANT'S OPPOSITION TO PLAINTIFFS' OPPOSED MOTION TO STRIKE PLEADINGS OF WEEKS MARINE AND OPPOSED MOTION FOR A SEPARATE TRIAL" 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. Parties may access this filing through the Court's system.

s/ David D'Alessandris