Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:04-cv-00634-EJD

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THOMAS D. PETERSON, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 04-634C (Chief Judge Damich)

DEFENDANT'S MOTION FOR LEAVE TO FILE AMENDED ANSWER Pursuant to Rule 15(a) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully moves for leave to file an amended answer in this proceeding. On June 8, 2004, at the time defendant filed its answer to the complaint, the United States District Court for the District of Utah had not yet entered a final order in the condemnation proceeding styled United States v. 82.532 Acres of Land, More or Less, Situated in Salt Lake County, State of Utah, et al. (Civil No. 2:02 CV 1425 DB). The Utah proceeding involved the

Government's condemnation on December 30, 2002, of land that includes land that the Government had rented from plaintiffs under the lease agreement at issue in this proceeding, which agreement plaintiffs contend the Government breached. The Utah

proceeding also involved land at issue in this proceeding that plaintiffs contend the Government had been unlawfully occupying. On July 30, 2004, two months after the Government filed its answer in this proceeding, the Utah district court entered a judgment and final order of condemnation.

Case 1:04-cv-00634-EJD

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Because the condemnation proceeding resolved valuation issues that also are at issue in this proceeding, the Government may now assert the affirmative defense of res judicata. Defendant's proposed amended answer, which accompanies this motion, differs from defendant's answer only in that it contains a paragraph 5 under affirmative defenses, in which the Government asserts the affirmative defense of res judicata. Defendant respectfully submits that justice requires that defendant be permitted to amend its answer by adding the defense of res judicata. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director

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OF COUNSEL: DWIGHT WILLIAMS Office of the Regional Counsel Northwest Mountain Region Federal Aviation Administration 1601 Lind Ave. SW Renton, Washington 98055

s/ Richard S. Ewing RICHARD S. EWING Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Tel. (202) 616-0462 Fax (202) 514-8624 Attorneys for Defendant

March 10, 2005

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CERTIFICATE OF FILING I hereby certify that on March 10, 2005, a copy of the foregoing Defendant's Motion For Leave To File Amended Answer 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. the Court's system. Parties may access this filing through

s/ Richard S. Ewing

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