Free Motion to Lift Stay - District Court of Federal Claims - federal

Case 1:05-cv-00677-CCM

Document 20

Filed 10/10/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TAMERLANE, LIMITED, et. al, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-677C (Judge Christine O.C. Miller)

DEFENDANT'S MOTION TO LIFT STAY FOR PURPOSE OF ALLOWING FILING AND ADJUDICATION OF DISPOSITIVE MOTION Defendant respectfully requests that the Court lift the stay entered in this case on January 3, 2006, for the limited purpose of allowing the filing and adjudication of a motion for judgment on the pleadings dismissing certain claims in this case. In the joint status report filed by the parties on August 17, 2006, the parties stated, among other things, as follows: Plaintiffs believe that, in view of the difficulties in proceeding to date, it would be appropriate for this case to be referred to Alternative Dispute Resolution ("ADR") before Judge Marian Blank Horn, to whom more than 260 cases involving claims similar to those in this case have been referred. The Government agrees that referral of this case to ADR would be appropriate with respect to resolving damages, but believes that the statute of limitations defense pleaded in the Government's answer with respect to the claims of two of the four partnerships ­ Park Terrace Limited and Mullica West Limited -- involve jurisdictional issues that should be resolved by motion before damages can be addressed in ADR. Defendant anticipates filing such a motion on or before September 25, 2006. Although the filing of such a motion was delayed by various other litigation matters occupying Government counsel's attention, the Government is prepared to file such a motion at this time. As a procedural matter, however, we believe that the stay currently in effect should be lifted for the limited purpose of allowing the filing and adjudication of the motion.

Case 1:05-cv-00677-CCM

Document 20

Filed 10/10/2006

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As indicated in the above-quoted joint status report, the motion would seek dismissal of the claims of plaintiffs Park Terrace Limited and Mullica West Limited based upon the statute of limitations. We believe that statute of limitations defense need not affect the parties' efforts to settle the claims of the other two plaintiffs ­ Tamerlane, Limited and Park Terrace East Limited ­ but that this defense is a complete bar to the claims of Park Terrace Limited and Mullica West Limited. The elimination of any uncertainty concerning this issue may facilitate resolution of the other issues in this case. The motion would also seek dismissal of Count Two of the complaint (alleging an taking of property without just compensation) as to all plaintiffs, for failure to state a claim upon which relief can be granted. Because this count seeks to invoke an alternative remedy for the same injury alleged in Count One (in which a breach of contract is alleged), dismissal of Count Two will not resolve the underlying controversy. However, elimination of one of these two theories for recovery is likely to narrow the issues that would be involved in any further settlement discussions between the parties. For the foregoing reasons, the stay entered in this case on January 3, 2006, should be lifted for the limited purpose of allowing the filing and adjudication of a motion for judgment on the pleadings dismissing certain claims in this case. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

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Case 1:05-cv-00677-CCM

Document 20

Filed 10/10/2006

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OF COUNSEL Michael S. Dufault Kenneth S. Kessler Commercial Litigation Branch Civil Division Department of Justice Alicia Peden Office of General Counsel Department of Agriculture

s/Shalom Brilliant SHALOM BRILLIANT Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Telephone: (202) 305-7561 Facsimile: (202) 305-7643 Attorneys for Defendant

Filed electronically October 10, 2006

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