Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00215-RHH

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Filed 06/03/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PHYLWAY CONSTRUCTON, LLC, Plaintiff, v. THE UNITED STATES Defendant. ) ) ) ) ) ) ) ) )

No. 05-215C (Judge Hodges)

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 of the Rules of the United States Court of Federal Claims ("RCFC"), and Appendix A to this Court's rules, the parties respectfully submit the following joint preliminary status report. The lettered and numbered paragraphs below correspond with the lettered and numbered paragraphs of Part III of Appendix A. a. Does the Court have jurisdiction over the action?

Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1491. The Government is presently unaware of any basis upon which to challenge the Court's jurisdiction. b. Should the case be consolidated with any other case?

The parties agree that this case should not be consolidated with any other case. c. Should the trial of liability and damages be bifurcated?

The parties agree that trial of liability and damages should not be bifurcated. d. Should further proceedings in this case be deferred pending consideration of another case before this Court or any other tribunal?

The parties agree that further proceedings in this case should not be deferred pending consideration of another case before this Court or any other tribunal. e. Will a remand or a suspension be sought?

The parties agree that no remand or suspension will be sought. f. Will additional parties be joined?

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The parties agree that no additional parties will be joined. g. Does either party intend to file a motion pursuant to RCFC 12(b), 12©, or 56 and, if so, what is a proposed schedule for the intended filing?

At this time, the parties are unable to determine whether they will file dispositive motions. However, should either party determine that a dispositive motion is appropriate, such motions will be filed either before or after the period for discovery has been completed. h. 1. 2. What are the relevant issues? Whether the subsurface conditions at the site differed materially from those identified in the contract? Whether the subsurface conditions at the site differed materially from those generally expected and ordinarily encountered in borrow pit excavation of the type involved in the contract? Did the actual quantity of materials Phylway was required to excavate, process and place exceed those estimated in the contract; and, if so did that constitute a constructive change? If the answer is yes to any of the above, to what additional compensation, if any, would plaintiff be entitled. What is the likelihood of settlement?

3.

4. I.

At this time, the parties cannot state whether this case can be settled, but will continue to assess the appropriateness of settlement throughout the litigation. j. Do the parties anticipate proceeding to trial? Does any party, or do the parties jointly, request expedited trial scheduling? What is the requested place of trial?

If the parties do not submit dispositive motions or settle the matter, they anticipate a trial in New Orleans, Louisiana. At this time, the parties do not request expedited trial scheduling. k. Is there any other information of which the Court should be aware at this time?

Defendant's counsel will be out of the country to perform active military service from July 5 - October 5, 2005. Other counsel will be assigned to monitor the case, as necessary. -2-

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l.

What is the proposed discovery plan?

Counsel for both parties intend to conduct simultaneous discovery through initial voluntary disclosures, interrogatories, requests for admission, requests for production of documents, and depositions, and anticipate the use of expert reports and testimony. They parties propose a discovery deadline of November 30, 2005. The parties anticipate that they would meet thereafter to discuss the possibility of settlement or how to proceed.and, propose that no later than December 15, 2005, they file a status report with the Court concerning the result of that meeting. If settlement is not likely, they will propose a schedule for the exchange of expert reports, and trial or dispositve briefing. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

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s/Phil B. Abernethy BUTLER, SNOW, O'MARA, STEVENS & CANNADA, PLLC AmSouth Plaza, 17th Floor 210 East Capitol Street Post Office Box 22567 Jackson, MS 39225-2567

s/ Steven J. Gillingham Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice 1100 L. St. N.W Attention: Classification Unit, 8th Floor, Washington, D.C. 20530 Tel: 202-616-2311 Facsimile: 202-353-7988 Attorneys for Respondent OF COUNSEL: WILLIAM G. MEINERS Attorney Advisor U. S. Army Corps of Engineers New Orleans, LA 70160-0267

Attorney for Plaintiff

Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on June 3, 2005, a copy of the foregoing "JOINT PRELIMINARY STATUS REPORT" 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/Steven J. Gillingham

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