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

Case 1:04-cv-00473-MBH

Document 58

Filed 03/18/2005

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

No. 04-00473 (Judge Horn)

JOINT STATUS REPORT Pursuant to this Court's February 11, 2005, order, the parties submit the following joint status report discussing the status of the case since the March 3, 2005 contracting officer's decision regarding additional claims. The March 3, 2005, contracting officer's decision is included herein as Attachment A With regard to such additional claims denied in the contracting officer's decision, and pursuant to this Court's February 11, 2005, order, the plaintiff intends to file a Fourth Amended Complaint on March 14, 2005 to which the defendant will respond, as directed by this Court, consistent with Rule 15(a) of the Court of Federal Claims. With regard to the progress of the case after the addition of these new claims, the parties note that plaintiff has moved for Summary Judgment on Count I, and that the Court stayed proceedings on that motion. We continue to believe that summary judgment in our favor on that same count is appropriate. The parties have also filed a Joint Statement of Issues of Law and Joint Stipulations of Uncontroverted Fact with regard to Count I. Given the number and variety of new claims that the Fourth Amended Complaint adds to this matter, it appears difficult to assume that further delay upon the Court's consideration of Count I might make a global summary judgment more manageable. In addition, the uncertainty whether summary judgment

Case 1:04-cv-00473-MBH

Document 58

Filed 03/18/2005

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will be granted with regard to Count I makes it difficult to assess the amount of discovery likely to be needed as this case proceeds. The parties further note that Count I constitutes far more than two-thirds of the amount at stake in this case. Accordingly, the parties both believe that the resolution of Count I by summary judgment could stimulate resolution of the remaining claims without need to resort to adjudication. For these reasons, we jointly propose that this Court allow the parties to complete briefing upon plaintiff's motion for summary judgment and allow defendant to file a cross-motion for summary judgment with regard to Count I, with the remainder of the claims held in abeyance while the question of summary judgment upon Count I is resolved. Should the above proposal prove unacceptable to this Court, the parties propose that the discovery schedule proposed in the September 13, 2004, Joint Preliminary Status Report be maintained with regard to amount of time allotted, namely that Initial Disclosures be due on May 2, 2005, fact discovery be concluded by November 1, 2005, expert witnesses be disclosed by November 15, 2005, expert reports be exchanged by December 15, 2005, and that expert discovery be completed by February 1, 2006. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/James M. Kinsella JAMES M. KINSELLA Deputy Director

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Case 1:04-cv-00473-MBH

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s/Joseph A. Yazbeck JOSEPH A. YAZBECK Yazbeck, Cloran & Hanson, LLC Suite 2750 1300 S.W. Fifth Avenue Portland, OR 97201-5617 Tel: (503) 227-1428 Fax: (503) 227-4866 Attorney for Plaintiff

March 18, 2005

s/James D. Colt JAMES D. COLT Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 514-7300 Fax: (202) 307-0972 Attorneys for Defendant

Case 1:04-cv-00473-MBH

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Filed 03/18/2005

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CERTIFICATE OF SERVICE I hereby certify that on this 18th day of March, 2005, a copy of the foregoing JOINT STATUS REPORT was filed electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/James D. Colt