Free Motion for Discovery - District Court of Federal Claims - federal

Case 1:04-cv-00473-MBH

Document 98

Filed 04/11/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) vs. ) ) THE UNITED STATES, ) ) Defendant. ) ___________________________________ ) M G CONSTRUCTION, INC.

No. 04-cv-00473-MBH (Judge Horn)

MOTION TO AMEND ADMISSION Pursuant to Rule 36(b), MG Construction hereby moves the Court to amend an admission. MG Construction made the following admission to the United States: REQUEST FOR ADMISSION NO. 1: M.G. Construction chose to use the manufacturer Mule Hide to complete work on this project. RESPONSE: Admit that M.G. Construction selected Mule Hide and that the Government approved Mule Hide. During deposition of Miguel Garcia, the principal of MG Construction, the Government's questioning led to a slightly different and nuanced answer. Miguel Garcia answered that he submitted multiple manufactures that met the specifications to the Government and the Government selected Mule Hide from that selection. Therefore, the previous admission is incorrect. MG Construction believes that the Government selected Mule Hide. MG Construction hereby moves to amend its answer to the following: RESPONSE: Deny. Pursuant to Rule 36(b), "the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits." Subserve is to be helpful or useful. The amendment of the 1

Case 1:04-cv-00473-MBH

Document 98

Filed 04/11/2006

Page 2 of 2

admission will be helpful in presenting the merits of MG's claims. It goes directly to MG's contention that the Government is responsible for the extra costs associated with the manufacturer's demand that thicker flashings be utilized in order for it to issue the Government's required 15 year warranty. The Government will not be prejudiced. The Government, presumably, has all of the submittals already in its files. Since this error was discovered during the deposition of Miguel Garcia, the Government has had an opportunity to question Mr. Garcia regarding this subject under oath. MG Construction respectfully requests that the Court grant its motion. DATED this 11th day of April, 2006.

"s/Joseph A. Yazbeck, Jr." Joseph A. Yazbeck, Jr. YAZBECK, CLORAN & HANSON, LLC 1300 SW 5th Av. Suite 2750 Portland, Oregon 97201 (503) 227-1428 Attorney of Record for Plaintiff

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