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

Case 1:05-cv-00170-LAS

Document 32

Filed 05/04/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SWANSON GROUP, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

Case No. 05-170C consolidated with 05-171C (Judge Smith)

DEFENDANT'S MOTION TO STAY RESOLUTION OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director s/ JOAN M. STENTIFORD

OF COUNSEL: Marcus Wah Associate Regional Attorney USDA-OGC, Pacific Region 1734 Federal Building 1220 S.W. Third Avenue Portland, Oregon 97204-2825

JOAN M. STENTIFORD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0341 Attorneys for Defendant

Dated: May 4, 2006

Case 1:05-cv-00170-LAS

Document 32

Filed 05/04/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SWANSON GROUP, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

Case No. 05-170C consolidated with 05-171C (Judge Smith)

DEFENDANT'S MOTION TO STAY RESOLUTION OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 7(b)(1) of the Rules of the Court of Federal Claims ("RCFC"), the United States respectfully requests that the Court stay resolution of the plaintiff's motion for summary judgment on the ground that the United States has moved to dismiss the summary judgment for lack of subject matter jurisdiction. Defendant respectfully requests the Court to stay the time within which defendant must respond to plaintiffs' motion for summary judgment until 30 days after the Court has ruled upon defendant's pending motion to dismiss. In the alternative, should the Court deny this motion to stay, defendant respectfully requests that the defendant be permitted to file a response to plaintiffs' motion for summary judgment within 30 days of the date of the Court's order. Gary Stevens, counsel for the plaintiff , states that he opposes this motion. On March 22, 2006, Swanson filed a motion for summary judgment affecting only action 05-171-C; the motion has no effect on action 05-170-C with which it is consolidated. It alleges that the Rescissions Act, 16 U.S.C. § 1611 note, provides it with grounds for relief against the United States. This claim was not previously presented in its certified claim and not pled in the complaint it filed in this action. The Court therefore lacks jurisdiction over it and it should be dismissed. Croman Corp. v. United States, 44 Fed. Cl. 796, 800 (1999).

Case 1:05-cv-00170-LAS

Document 32

Filed 05/04/2006

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The United States should not be required to spend its time and resources answering a claim this Court does not possess jurisdiction to hear. When defendant has not answered the complaint but has moved to dismiss upon jurisdictional grounds, it is appropriate for the Court to defer consideration of plaintiff's motion for summary judgment until jurisdiction has been established and defendant has filed substantive opposition. First American Bank, N.A. v. United Equity Corp., 89 F.R.D. 81, 87 (D. D.C. 1981). In order to economize both the Court's and the parties' efforts, it is logical to delay further briefing of this issue until the Court has ruled upon the jurisdictional issue raised in the United States' motion to dismiss. See RCFC 1.

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Case 1:05-cv-00170-LAS

Document 32

Filed 05/04/2006

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CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court grant its motion and stay resolution of plaintiff's motion for summary judgment until 30 days after the Court has ruled upon the Government's motion to dismiss. Alternatively, should the Court deny this motion to stay, the United States respectfully requests that it be granted 30 days from the entry of the order denying the Government's motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director s/ JOAN M. STENTIFORD

OF COUNSEL: Marcus Wah Associate Regional Attorney USDA-OGC, Pacific Region 1734 Federal Building 1220 S.W. Third Avenue Portland, Oregon 97204-2825

JOAN M. STENTIFORD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0341 Attorneys for Defendant

Dated: May 4, 2006

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