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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TELENOR SATELLITE SERVICES, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-528C (Judge Baskir)

DEFENDANT'S REPLY TO TELENOR'S OPPOSITION TO DEFENDANT'S MOTION FOR LEAVE TO FILE DISPOSITIVE MOTION In its October 26, 2006, motion, defendant, the United States, respectfully requested leave to file a dispositive motion upon the issue whether plaintiff, Telenor Satellite Services, Inc. ("Telenor") could have avoided the costs that it seeks in this action. Telenor opposes this request, but does not argue that such a motion could not meet the standard for a dispositive motion. For example, Telenor does not argue that the Government could not prove that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law, as would be required for entry of summary judgment in its favor pursuant to Rule 56(c) of the Rules of the United States Court of Federal Claims. Nor does it expressly state that the principal of avoidance does not apply to this case. Indeed, it cannot reasonably take that position: a party cannot recover damages for loss that

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it could have avoided by reasonable efforts. Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1375 (Fed. Cir. 2005). Rather, Telenor appears to argue that a dispositive motion upon the principle of avoidance would delay a trial, and argues that such a motion would delay resolution of this matter. However, summary judgment is a salutary method of disposition designed to secure the just, speedy and inexpensive determination of every action, Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1562 (Fed. Cir. 1987), and of avoiding an unnecessary trial when the movant is clearly entitled to judgment as a matter of law. Quad Envtl. Techns. Corp. v. Union Sanitary Dist., 946 F.2d 870, 872 (Fed. Cir. 1991). That is what we expect a dispositive motion will demonstrate: that the expense of trial is unnecessary in this action because the Government is clearly entitled to judgment as a matter of law. As for delaying a trial, no trial has yet been scheduled in this action. The Government was ready to file a dispositive motion upon the issue of avoidance on October 31, 2006, and is ready to file that motion immediately. (Pursuant to the Court's order, on November 1, 2006, we attached that motion to our re-filed motion for leave to file a dispositive motion.) Telenor presents no good reason that such a motion should not

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be allowed. The Government proposes that Telenor be allowed 28 days to respond to such a motion, and that the Government be allowed 14 days to reply to Telenor's response to such a motion. For these reasons and those set forth in our motion, the Government respectfully requests leave to file a dispositive motion in this action. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Patricia M. McCarthy PATRICIA M. MCCARTHY Assistant Director s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Telephone: (202) 616-0342 Facsimile: (202) 514-7965

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OF COUNSEL: ONA M. HAHS Attorney-Adviser Department of State November 2, 2006 Attorneys for Defendant

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Certificate of Filing I hereby certify that on November 2, 2006, a copy of the foregoing Defendant's Reply To Telenor's Opposition To Defendant's Motion For Leave To File Dispositive Motion 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/Timothy P. McIlmail