Free Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00376-RHH

Document 18

Filed 09/18/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MANHATTAN CONSTRUCTION COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-376C (Judge Robert H. Hodges)

DEFENDANT'S STATUS REPORT Pursuant to this Court's August 23, 2006 order, defendant, the United States, provides the following status report. This report has been reviewed by counsel for the plaintiff, Manhattan Construction Company ("Manhattan"), and he has indicated that he does not agree with the contents of this report. The complaint in this matter was filed on March 16, 2005. The Government filed its answer on May 13, 2005. On June 21, 2005, the Joint Preliminary Status Report ("JPSR") was filed. In the JPSR, the parties proposed that fact witness discovery be completed by October 31, 2005, that expert witnesses be designated by September 15, 2005, and that expert witness reports be exchange within 30 days of fact witness discovery being completed. On July 19, 2005, this Court issued a scheduling order that incorporated the dates that the parties proposed in the JPSR. Pursuant to this Court's July 19, 2005 scheduling order, on August 31, 2005, defendant designated Kenneth McLauchlan, with McLauchlan & Associates, as its expert witness in this matter. On September 15, 2005, Manhattan indicated that the fact witnesses it had previously identified might testify as expert witnesses. At that time, Manhattan intended to have James Fleming, the project manager, provide expert testimony upon behalf of Manhattan. In

Case 1:05-cv-00376-RHH

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Filed 09/18/2006

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October 2005, Mr. Fleming died. On September 19, 2005, the Government provided counsel for Manhattan with a copy of Mr. McLauchlan's expert report. In December 2005, attempts to resolve this matter were unsuccessful. On January 20, 2006, plaintiff filed a motion for leave to file an amended expert witness disclosure, and to extend the deadline for deposing experts until March 1, 2006. The Government did not oppose the granting of that motion. On January 24, 2006, the Court granted Manhattan's motion, setting February 1, 2006, as the deadline for Manhattan to disclose its expert to the Government, and setting March 1, 2006, as the deadline for the parties to complete the depositions of the experts. On February 1, 2006, Manhattan designated Kevin Tracy as is expert witness. Counsel were not able to schedule the depositions of the experts prior to the March 1, 2006 deadline because counsel for Manhattan did not provide the Government with a copy of Mr. Tracy's expert report. On August 18, 2006, plaintiff provided the Government with a copy of Kevin Tracy's expert report. Government counsel provided plaintiff's counsel with dates in September 2006 for the deposition of the Government's expert. Plaintiff intends to depose the Government's expert on September 29, 2006. By email dated August 23, 2006, Government counsel requested dates in October from plaintiff's counsel on which plaintiff's expert can be deposed. Plaintiff's counsel has not yet provided Government counsel with the requested information. On August 29, 2006, defendant's counsel informed counsel for plaintiff that the 2

Case 1:05-cv-00376-RHH

Document 18

Filed 09/18/2006

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Government does not intend to engage in further settlement negotiations. The Government intends to file for summary judgement or, in the alternative, to proceed to trial in this matter. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Leslie Cayer Ohta LESLIE CAYER OHTA Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street NW Attn: Classification Unit, 8th Floor Washington, D.C. 20530 202-307-0252 202-307-8972 9Fax) September 18, 2006 Attorneys for Defendant

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