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

Case 1:04-cv-00683-MBH

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Filed 09/26/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 04-683 T (Judge Marian Blank Horn) (Consolidated with Nos. 05-695 T, 05-696 T, 05-1074 T, 05-1315 T, & 05-1384 T) JOHN E. KETTLE and ANNE R. KETTLE, Plaintiffs v. THE UNITED STATES, Defendant. JOINT STATUS REPORT Pursuant to the Court's Order [Doc. #26] dated June 4, 2007, the parties, through their attorneys, provide the following progress report on Donald L. Dismore and Bettye G. Dismore v. United States, Fed. Cl. No. 04-1787 T. On September 18, 2007, the Court, pursuant to RCFC 41(b), dismissed Dismore for lack of prosecution. A copy of the Court's dismissal is attached. Because Dismore was dismissed for lack of prosecution, no decision issued that impacts four of the AMCOR cases consolidated with this case: Plowman, Fed. Cl. No. 05-695T, Glass, Fed. Cl. No. 05-696T, Mitchell, Fed. Cl. No. 05-1074T, and Bransted, Fed. Cl. No. 05-1315T. However, there are three AMCOR cases moving forward in which plaintiffs have raised claims like the ones plaintiffs have raised in Plowman, Glass, Mitchell, and Bransted. The three cases are Perkins, Fed. Cl. No. 06-51T, Schell, Fed. Cl. No. 04-1743T, and Jewell, Fed. Cl. No.

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Case 1:04-cv-00683-MBH

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06-228T. Accordingly, the parties request the Court continue to stay Plowman, Glass, Mitchell, and Bransted, until one or more of Perkins, Schell, and Jewell is resolved. If the Court is disinclined to continue the stay, the parties request fifteen days from issuance of an order to propose one of Plowman, Glass, Mitchell, and Bransted to move forward, while the others remain stayed, and to propose a course of proceedings for the selected case. The parties state that this report is being filed one day after the deadline set forth in the Court's June 4, 2007, order, and that they regret the delay. By way of explanation, defendant represents that defendant's undersigned attorney of record has been devoting a majority of his time to litigating a substantial tax case pending in the Northern District of California, DR Management LLC et. al. v. United States, C 05-01010 (MMC) (N.D.Cal.). He traveled to California from Sunday, September 9 to Saturday, September 15 to take four depositions. He spent much of Tuesday, September 18, 2007, the day the order dismissing Dismore issued, and almost all of his time the following two days preparing to take an all day deposition and participate in a meet and confer conference for DR Management LLC in Richmond, Virginia, on Thursday, September 20, 2007. As a result of this work, in addition to responsibilities arising from other cases, defendant's attorney did not recall the requirement of a joint status report until the evening of Tuesday, September 25, after it was too late to draft a status report, submit it for internal review, and obtain plaintiffs' attorney's authorization for filing. Defendant's attorney began drafting the report that evening, finished the draft and submitted it for internal review today, and then forwarded the draft to plaintiffs' attorney for review, insertion of plaintiffs' attorney's statement regarding the delay, and filing. By way of explanation, plaintiffs represent that on September 3, 2007, the brother-in-law

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of Plaintiffs' undersigned attorney of record, Mr. Wilburn, suffered an aneurism and massive hemorrhagic stroke. While at first Mr. Wilburn's condition appeared to improve it then dramatically worsened when hospital staff accidentally reinserted his feeding tube into his lungs and not his stomach and, in the ensuing commotion, forgot to administer his blood pressure medication. He is now under care for possible pneumonia and his chances of a second aneurism have dramatically increased. Plaintiffs' counsel has been representing his family's interests with the hospital and insurers as well as hosting family members and coordinating travel arrangements for those who want to pay what may be their final respects. In addition, Plaintiffs' counsel has met the deadlines to research, draft, and file briefs on Monday, September 24, 2007 in Mellina v. United States, before the United States District Court for the Northern District of Texas at docket no. 06-449, and on Tuesday, September 25, 2007 in Bartimmo v. United States, before the United States District Court for the Southern District of Texas at docket no. 06-1317. Plaintiffs' counsel apologizes for overlooking this Court's deadline to report regarding the status of Dismore, which was dismissed on September 18, 2007. Defendant's attorney has authorized plaintiffs' attorney to sign this joint status report on his behalf. Respectfully submitted, 9/26/2007 Date s/Teresa J. Womack TERESA JEAN WOMACK Redding & Associates, P.C. P.O. Box 924328 Houston, Texas 77292-4328 (713) 965-9244 (713) 621-5227 (fax) Attorney for Plaintiffs

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9/26/2007 Date

s/Bart D. Jeffress by s/Teresa. J. Womack BART D. JEFFRESS Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6496 (202) 514-9440 (fax) RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief, Court of Federal Claims Section

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s/Steven I. Frahm by Teresa J. Womack Of Counsel Attorneys for Defendant