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

Case 1:05-cv-00215-RHH

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Filed 09/05/2006

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

No. 05-215C (Judge Hodges)

THE UNITED STATES, Defendant.

DEFENDANT'S MOTION TO STAY PROCEEDINGS, UPON BEHALF OF THE PARTIES Upon behalf of the parties, defendant respectfully requests that proceedings in this case be stayed pending the conduct of settlement discussions between the parties. Plaintiff's counsel has read this motion and concurs. During the period of discovery, the parties have exchanged interrogatories, have visited each other's facilities to review documents, have collected and exchanged documents, and have selected experts to assist them in resolving this case. Having discussed the case, the parties agree that a worthwhile approach to resolving the case is to embark upon a formal process of alternative dispute resolution. Specifically, the parties have agreed to exchange position papers and hold formal discussions in New Orleans during the week of October 23, 2006. The parties had scheduled this meeting for two earlier weeks, each of which had to be postponed because of schedule conflicts of the participants. The Government expects to submit the first position paper on or about September 22, 2006, including expert's preliminary views. The parties would like to submit as many as possible leading up to the negotiations, so as to narrow the factual and legal issues for their face-to-face meetings. Defendant's counsel has used this technique successfully on many occasions, including a shipbuilding construction case, in which the parties' negotiators reached a settlement proposal to

Case 1:05-cv-00215-RHH

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be submitted to the authorized representative of the Attorney General, this month. The parties' negotiations followed full document discovery and the exchange of approximately three rounds of position papers. Currently, defendant's counsel is preparing the Government's position paper in another such negotiation -- that one, involving a construction claim. In that case, the parties' negotiations followed the parties' full briefing of motions for judgment on the administrative record, pursuant to the Wunderlich Act. Face-to-face negotiations are scheduled for this month. That case also has been stayed. The parties propose that they report back to the Court concerning their progress, including the necessity of any further proceedings, on or before November 1, 2006. For these reasons, defendant respectfully requests that the Court grant this motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

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WILLIAM G. MEINERS Attorney Advisor U.S. Army Corps. of Engineers New Orleans, Louisiana 70160-0267

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 (202) 353-7961 Attorneys for Defendant

September 5, 2006

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CERTIFICATE OF FILING I hereby certify that on September 5, 2006, a copy of the foregoing 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