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

Case 1:99-cv-00078-LB

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Filed 12/16/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SPORTING GOODS PROPERTIES, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 99-78C (Judge Block)

JOINT MOTION TO LIFT STAY AND ACTIVATE CASE Pursuant to the Court's November 12, 2002 Order, the parties jointly request that the Court lift the current stay and activate this case. On March 23, 2001, the parties filed a joint motion

in this case indicating that, as a practical matter, resolution of liability issues in the related matter of E.I. du Pont de Nemours & Co. v. United States, No. 99-101C (Fed. Cl.) ("DuPont") might dispose of the liability issues in this case as well. On

March 27, 2001, the Court suspended generally all proceedings in this case pending resolution of cross-motions in DuPont. Cross-

motions in the DuPont case were resolved on November 8, 2002, with this Court entering judgment in favor of the United States. On November 12, 2002, the Court ordered that this case would remain suspended until otherwise ordered, and encouraged the parties to file a joint motion for activation of the case when it is appropriate to do so. The parties represent that it is, now, appropriate to activate this case. On April 28, 2004, the United States Court

Case 1:99-cv-00078-LB

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of Appeals for the Federal Circuit reversed this Court's judgment in DuPont, and remanded the case for determination of damages and entry of judgment against the United States. (Fed. Cir. 2004). 365 F.3d 1367, 1380

Rehearing and rehearing en banc were denied on

August 31, 2004, and the Court of Appeals issued its mandate on September 7, 2004. The date for seeking certiorari review to the

United States Supreme Court has passed without the United States seeking review. For the foregoing reasons, the parties request that the Court lift the current stay and activate this case and schedule a status conference pursuant to Rule 16 of the Rules of the United States Court of Federal Claims. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Robert E. Kirschman, Jr. ROBERT E. KIRSCHMAN, JR. Assistant Director

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s/John McGahren JOHN MCGAHREN Latham & Watkins LLP One Newark Center Newark, NJ 07101-3174 Tel: (973) 639-1234 Fax: (973) 639-7298 Attorneys for Plaintiff Sporting Goods Properties, Inc. December 15, 2004

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 307-0361 Facsimile: (202) 514-7965 Attorneys for Defendant December 15, 2004

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Certificate of Filing I hereby certify that on December 15, 2004, a copy of the foregoing Joint Motion To Lift Stay And Activate Case 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. system. Parties may access this filing through the Court's

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL