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

Case 1:05-cv-00708-CFL

Document 83

Filed 06/18/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS SCOTT TIMBER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-708C (Judge Lettow)

DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S THIRD MOTION IN LIMINE In response to this Court's May 28, 2008 Order, defendant respectfully submits its reply to plaintiff's response to our third motion in limine. Plaintiff wants to offer evidence of actions taken by the Forest Service to "show the feasibility of the Forest Service employing explicit and direct language to exculpate itself from its own wrongful actions." Pl.'s Response to Def.'s Third Motion In Limine at 2. Plaintiff apparently intends to prove that the Forest Service could have executed a proper exculpatory provision. This is irrelevant. The contracts at issue here were suspended as the result of the injunction entered in the ONRC Action. Clause CT6.01, undisputedly contained in the Jigsaw, Whitebird, and Pigout timber sale contracts, provides the Forest Service with the only authority it needed to suspend the contracts. Thus, any additional measures that may have subsequently been taken by the Forest Service have no bearing on the propriety of the suspensions at issue here. Therefore, plaintiff's proffered evidence of a subsequent remedial measure is irrelevant and should be excluded. Defendant respectfully requests that this Court issue an order ruling that all evidence relating to any subsequent remedial measure drafted by the Forest Service after entering into the

Case 1:05-cv-00708-CFL

Document 83

Filed 06/18/2008

Page 2 of 3

three contracts at issue here is irrelevant, and, therefore, inadmissible in this case.

Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/Bryant G. Snee BRYANT G. SNEE Deputy Director s/Joan M. Stentiford JOAN M. STENTIFORD Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tel: (202) 616-0341 Fax: (202) 514-8624

s/Ellen M. Lynch ELLEN M. LYNCH Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tel: (202) 353-7994 Fax: (202) 514-8624 June 18, 2008 Attorneys for Defendant

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Case 1:05-cv-00708-CFL

Document 83

Filed 06/18/2008

Page 3 of 3

Certificate of Filing I hereby certify that on this 18th day of June, 2008, a copy of "Defendant's Reply to Plaintiff's Response To Defendant's Third Motion In Limine" 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/Ellen M. Lynch ELLEN M. LYNCH