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

Case 1:05-cv-00374-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ LL&E MINING, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

No. 05-374C Judge Bruggink

UNOPPOSED MOTION FOR STAY OF PROCEEDINGS LL&E Mining Inc., respectfully requests that the Court stay proceedings in this matter pending the resolution of cross motions for summary judgment that have been or are soon to be submitted in numerous analogous cases involving the appropriateness of the measurement of periodic price adjustments for jet fuel sold to the Federal Government, during which time counsel for the parties to this matter will continue to explore the possibility of settling this matter. Counsel for the United States, Steven J. Gillingham, has advised undersigned counsel

that the United States does not oppose this motion. A stay of this matter will conserve judicial and party resources and will serve the interests of justice. There are currently in excess of 25 cases involving jet fuel cases before various

judges of the Court, with cases dating back to mid-1995 and with the bulk of the cases dating to the 2002 ­ 2003 time frame. Counsel for those cases have already invested significant resources into developing the respective cases and are substantially advanced into the process of moving those cases toward dispositive resolution. By contrast, the current case was commenced by prior counsel in March of 2005. LL&E sought the transfer of the matter to undersigned counsel in September of 2005, shortly after the United States Court of Appeals issued its decision in Tesoro

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v. United States, No. 02-704. As a result, the case is still in its infancy with no answer having been filed as of yet and no discovery having commenced. However, counsel for the United States and undersigned counsel have initiated discussions to assess whether this particular case might be resolved informally at this early stage. Both counsel are of the view that such an effort merits further consideration at this juncture before committing substantial additional resources to this case. Even in the event that settlement is not achieved, there is a substantial basis for awaiting the outcome of the summary judgment motions in the cases that are more mature than this one. Most, if not all of the jet fuel cases turn on generally similar legal theories. The United States is seeking summary judgment regarding many of the theories advanced on behalf of the respective plaintiffs in the other cases and in this case.1 If the United States fails in this effort, the cases should then be able to proceed to a resolution of the fact issues regarding the appropriate measure of market price. If the United States prevails, the ability of plaintiffs to advance their cases will be circumscribed. Under the circumstances, counsel for plaintiffs and the United States in the other more mature cases are better placed to address these motions before the Court than is LL&E, as to which issue has yet to even be joined. Once the underlying legal issues are resolved in the other matters, LL&E and the United States, if they do not achieve a settlement,

Although this Court has not scheduled further proceedings in Tesoro, undersigned counsel understands that summary judgment is to be submitted as a test case during November in one of the several cases pending before Judge Wiese, based upon the record of an October 20, 2005 status conference in Placid Holding Co. v. United States, No. 03-01216; ConocoPhillips v. United States, No. 02-01367; Exxon, 02-01217; and Williams Alaska, 02-00705. Similar motions are expected in matters pending before Judge Firestone, in Valero Refining-Texas, LP, et al. v. United States, No. 03-1916C) (Western Refining Co., LP v. United States, No. 03-2669C and Western Refining Co., LP v. United States, No. 05-439C are consolidated with and stayed pending resolution of Valero). Similar motions are expected in matters before Judge Block. E.g., Hermes Consolidated v. United States, No. 02-1460 and El Paso Merchant v. United States, No. 02-1094.
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likely will be much better able to move this matter forward more expeditiously than they can under current circumstances. In the interim, both counsel believe that their time is best served in further exploring whether a settlement can be achieved. If the Court grants this motion, undersigned counsel proposes that the parties report back to the Court on a 90-day schedule as to the status of the pending motions and settlement discussions. CONCLUSION For the foregoing reasons, LL&E requests that the Court grant its unopposed motion to stay this matter. Respectfully submitted, s/ Anthony H. Anikeeff Anthony H. Anikeeff Bracewell & Giuliani LLP 2000 K Street, NW, Suite 500 Washington, D.C. 20006-1782 Tel: (202) 828-5800 Fax: (202) 857-2142 Attorney for LL&E Mining Inc.

Dated: November 14, 2005

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CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2005, a copy of the foregoing Unopposed Motion for Stay of Proceedings 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.

Steven J. Gillingham, Esq. Commercial Litigation Branch Civil Division United States Department of Justice 1100 l Street, N.W. Washington, D.C. 20530

___/s/ Anthony H. Anikeeff__

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