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

Case 1:05-cv-00186-FMA

Document 43

Filed 09/07/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LAVETTA ELK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

JOINT STATUS REPORT Plaintiff Lavetta Elk, and Defendant United States of America, (collectively referred to herein as the "Parties"), by and through their respective counsel, hereby submit this Joint Status Report. Pursuant to the Court's Order of August 13, 2007, the Parties are to indicate the manner in which the case should proceed. As noted by Plaintiff's counsel during the during the hearing of August 9, 2007, Plaintiff intends to file a Motion for Summary Judgment as to liability based on sworn admissions of Sergeant Kopf and the strict liability language of the "Bad Men" Clause of the Treaty with the Sioux of April 29, 1868.1 During the hearing of August 9, 2007, the Court requested that Defendant consider if the filing of a summary judgment motion was necessary or if the issues involved could be handled by filing motions in limine. Defendant has determined that it can adequately address these issues through motions in limine; however, given the fact that the schedule will accommodate dispositive motions based on Plaintiff's intended filing discussed above, Defendant intends to

Defendant does not concede liability in this case; however, Defendant will not contest the findings arising from the Article 15, Uniform Code of Military Justice, (10 U.S.C. § 815) nonjudicial punishment proceedings related to Sergeant Kopf's misconduct.

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Case 1:05-cv-00186-FMA

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Filed 09/07/2007

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file a Motion for Summary Judgment as well. Defendant will demonstrate that Plaintiff cannot meet her burden of establishing that she is entitled to compensation stemming from allegedly stress-related miscarriages. Further, Defendant intends to show that the Bad Men clause of the Treaty with the Sioux of April 29, 1868 (15 Stat. 635) does not encompass the harm Plaintiff alleges in this case, nor can Plaintiff demonstrate that she incurred any costs arising from the alleged harm. Following the hearing of August 9, 2007, the Parties met and conferred regarding settlement. The Parties have not reached a settlement in this matter, and believe that engaging in additional settlement discussions will not be fruitful. Accordingly, the Parties jointly propose the following briefing schedule for summary judgment motions: Filing of all Dispositive Motions Filing of all Responses in Opposition Filing of all Replies in Support October 22, 2007 November 26, 2007 December 10, 2007

Additionally, the Parties propose the following alternative schedules in accordance with Appendix A to the CFC Rules, §VI. Plaintiff's Proposed Schedule: Meeting of Counsel Plaintiff's Memorandum of Contentions of Fact and Law Defendant's Memorandum of Contentions of Fact and Law Each Party to File Witness List and Exhibit List Final Pretrial Conference 2 January 11, 2008 January 25, 2008 February 22, 2008 March 4, 2008 March 14, 2008

Case 1:05-cv-00186-FMA

Document 43

Filed 09/07/2007

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Defendant's Proposed Schedule: Meeting of Counsel Plaintiff's Memorandum of Contentions of Fact and Law Defendant's Memorandum of Contentions of Fact and Law Each Party to File Witness List and Exhibit List Final Pretrial Conference March 10, 2008 March 24, 2008 April 21, 2008 May 2, 2008 May 12, 2008

Counsel for Plaintiff consents to the filing of this Joint Status Report by counsel for Defendant. Dated this 7th of September, 2007.

Respectfully submitted,

RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division

s// Steven D. Bryant Steven D. Bryant Sara E. Culley Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 (phone) (202) 305-0267 (fax) [email protected] Counsel of record for Defendant

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