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

Case 1:02-cv-01460-LB

Document 56

Filed 10/21/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS HERMES CONSOLIDATED, INC., Doing Business As Wyoming Refining Company, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 02-1460C (Judge Block)

DEFENDANT'S UNOPPOSED MOTION TO STAY Defendant respectfully requests that the Court stay the answer to the amended complaint in this case, pending the resolution of its summary judgment motion, ordered to be filed by the Court's order of September 26, 2005. Plaintiff does not oppose this motion. This is one of approximately 30 cases pending before this Court concerning EPA clauses used by the Defense Energy Support Center in jet fuel contracts during the 1980s and 1990s. The principal question in these cases, the legality of these clauses, was addressed by the Federal Circuit in Tesoro v. United States, 405 F.3d 1339 (2205). Thereafter, the Court permitted plaintiff to file an amended complaint, and conducted a scheduling hearing at which it permitted defendant to file a motion for summary judgment and declined to permit discovery. Plaintiff filed its amended complaint on October 3. Ordinarily, an answer to such a complaint would be due on or before October 21, 2005. RCFC 12, however, provides that a party may respond to a complaint by a dispositive motion, in lieu of an answer, which the Court has permitted us to do. In the other jet-fuel case in which the Court has entertained this question, the Court also permitted us to file a motion for summary judgment, refused to permit discovery (except as required by RCFC 56(f)), and stayed the requirement to answer a virtually identical amended complaint. Calcasieu v. Untied States, No. 02-1219C (Fed. Cl.).

Case 1:02-cv-01460-LB

Document 56

Filed 10/21/2005

Page 2 of 4

For these reasons, defendant respectfully requests that the Court stay the answer to the amended complaint in this case, pending the resolution of its summary judgment motion, ordered to be filed by the Court's order of September 26, 2005. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

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Case 1:02-cv-01460-LB

Document 56

Filed 10/21/2005

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OF COUNSEL: BERNARD A. DUVAL Counsel HOWARD M. KAUFER Assistant Counsel Office of Counsel Defense Energy Support Center Ft. Belvoir, VA

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Senior Trial Counsel KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant

October 21, 2005

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Case 1:02-cv-01460-LB

Document 56

Filed 10/21/2005

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on October 21, 2005, a copy of the foregoing document 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. Parties may access this filing through the Court's system. s/ Steven J. Gillingham