Free Declaration - District Court of Federal Claims - federal

Case 1:99-cv-00961-LAS

Document 123

Filed 05/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WHITE BUFFALO CONSTRUCTION, INC., an Oregon corporation, Plaintiff, v. THE UNITED STATES, Defendant.

DECLARATION OF SCOTT J. KAPLAN IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS CERTAIN CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR JUDGMENT UPON THE PLEADINGS UPON CERTAIN CLAIMS No. 99-961C (Consolidated with Case Nos. 07-738C and 00-415C) Senior Judge Loren A. Smith Electronically Filed May 7, 2008

I, Scott J. Kaplan, declare as follows: 1. I am a member of Stoel Rives LLP and one of the attorneys representing plaintiff

White Buffalo Construction, Inc. ("White Buffalo") in this action. 2. Attached as Exhibit 1 are excerpts from the deposition transcript of Federal

Highway Administration ("FHA") Area Engineer Paul Rettinger ("Rettinger") taken on July 26, 2000 in these consolidated cases ("2000 Rettinger Depo.") and exhibits thereto. 3. Attached as Exhibit 2 are excerpts from the deposition transcript of Federal

Highway Administration ("FHA") Area Engineer Paul Rettinger ("Rettinger") taken on April 25, 2008 in these consolidated cases ("2008 Rettinger Depo.") and exhibits thereto. 4. Attached as Exhibit 3 are excerpts from the Contracting Officer's ("CO") August

2007 decision on White Buffalo's FHA Contract No. DTFH70-98-C-00027 in the Siskiyou National Forest, an FHA contract on behalf of the U.S. Forest Service (the "Forest Service"). 5. Attached as Exhibits 4 and 5 are copies of Exhibits 16 and 17 to the deposition of

Sterling Munro taking on May 5, 2005. The transcript is not yet available. These exhibits are

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Case 1:99-cv-00961-LAS

Document 123

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documents produced to White Buffalo by the DCAA and were not received by White Buffalo's counsel from the DCAA until Thursday, May 1, 2008. 6. Attached as Exhibit 6 are excerpts from the deposition transcript of Federal

Highway Administration ("FHA") Contracting Officer William Parsons ("Parsons") taken on April 29, 2008 in these consolidated cases ("2008 Parsons Depo.") and exhibits thereto. 7. Attached as Exhibit 7 are excerpts from the deposition transcript of Federal

Highway Administration ("FHA") Construction Operations Engineer Curtis Scott ("Scott") taken on April 25, 2008 in these consolidated cases ("Scott Depo.") and exhibits thereto. 8. Attached as Exhibit 8 are excerpts from the deposition transcript of Federal

Highway Administration ("FHA") Contracting Officer Elizabeth Firestone ("Firestone") taken on April 24, 2008 in these consolidated cases ("Firestone Depo."). 9. Attached as Exhibit 9 is the Stipulation for Settlement between the government

and White Buffalo marked as Exhibit 35 during the deposition of Dorothy Adeka taken on July 27, 2000. 10. Attached as Exhibit 10 is a copy of Plaintiff's Response to Defendant's Requests

for Admission Nos. 1-5. 11. Attached as Exhibit 11 is a copy of the Complaint, Case No. 99-961C.

I hereby declare, under penalty of perjury under the laws of the United States and Oregon that the foregoing is true and correct. DATED: May 7, 2008.

/s/ Scott J. Kaplan Scott J. Kaplan

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