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

Case 1:05-cv-00748-CCM

Document 37

Filed 03/09/2007

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

STOBIE CREEK INVESTMENTS, LLC, JFW ENTERPRISES, INC., Tax Matters and Notice Partner, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) )

No. 05-748 T (Judge Christine O. C. Miller)

THE UNITED STATE'S MOTION FOR LEAVE TO FILE A SUR-REPLY IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL THE DEPOSITION OF RICHARD STARKE The United States moves for leave to file the attached sur-reply in opposition to plaintiff's Motion to Compel Deposition Testimony of Richard Starke. The United States seeks to file a sur-reply not to re-argue points already addressed in the previous briefing, but only to provide the Court with a complete record on matters raised, for the first time, by plaintiff in its reply brief in support of its motion to compel. Plaintiff attached to its reply brief a portion of the trial transcript from the case Jade Trading v. United States, (Fed. Cl. No. 03-2164). That portion of the transcript contains the trial testimony of Richard Starke, and a colloquy between counsel and the court about the testimony. Plaintiff did not submit, however, the transcript of proceedings from two subsequent days during which counsel and the court continued their discussion. Because the partial transcript submitted by plaintiff gives only a partial, and misleading, account of the proceedings in Jade, the United

Case 1:05-cv-00748-CCM

Document 37

Filed 03/09/2007

Page 2 of 2

States requests leave to file a sur-reply, with the remaining, relevant portions of the transcript attached.

Respectfully submitted, /s/ Stuart D. Gibson Stuart D. Gibson Attorney of Record U.S. Department of Justice Tax Division Office of Civil Litigation Post Office Box 403 Ben Franklin Station Washington D.C. 20044 (202) 307-6586 Eileen J. O'Connor Assistant Attorney General David Gustafson Chief, Court of Federal Claims Section Cory A. Johnson Trial Attorney, Court of Federal Claims Section /s/ Cory A. Johnson Of Counsel

Dated: March 9, 2007

-2-