Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:98-cv-00720-GWM

Document 261

Filed 09/09/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PRECISION PINE & TIMBER, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 98-720C (Judge G. Miller)

PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY Pursuant to Rule 7(b) of the Rules of the Court of Federal Claims, plaintiff, Precision Pine & Timber, Inc. ("Precision Pine"), respectfully requests that the Court grant it leave to file supplemental authority in support of Plaintiff's Response To Defendant's Motion For Summary Judgment Regarding Damages. Specifically, Precision Pine seeks to draw the Court's attention to American Savings Bank, F.A. v. United States, 2004 WL 1941210 *21-22 (Fed. Cl., Aug. 31, 2004) (J. Smith) (requiring plaintiff to demonstrate that defendant's breach was "a substantial factor" in causing its lost profits and finding that a genuine issue of material fact precluded summary judgment on this issue); and Franconia Associates v. United States, 2004 WL 1941215 *21, *24 (Fed. Cl., Aug. 30, 2004) (J. Allegra) (finding in a non-Winstar context that plaintiff was entitled to recover lost profits based upon a showing at trial that defendant's breach was "a substantial factor" in causing its lost profits). Copies of the Westlaw version of these decisions are attached hereto.

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Case 1:98-cv-00720-GWM

Document 261

Filed 09/09/2004

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Because both of these new opinions lend support to Precision Pine's positions in the instant case that (1) the proper test for determining causation is whether or not defendant's breach was "a substantial factor" in causing damages and that (2) this issue should typically be resolved at trial, Precision Pine respectfully requests that it be granted leave to file these attached opinions as supplemental authority and that the Court consider these opinions in its deliberations on defendant's pending motion for partial summary judgment in this matter.

Respectfully submitted,

s/Alan I. Saltman SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 (202) 775-8217 ­ facsimile Counsel for Plaintiff OF COUNSEL: Richard W. Goeken SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Washington, D.C. 20006 (202) 452-2140 (202) 775-8217 ­ facsimile Dated: September 9, 2004

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Case 1:98-cv-00720-GWM

Document 261

Filed 09/09/2004

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