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

Case 1:98-cv-00168-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTH STAR ALASKA HOUSING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 98-168C Judge Francis M. Allegra

DEFENDANT'S REPLY TO PLAINTIFF'S STATUS REPORT OF AUGUST 6, 2004 Defendant, the United States, submits this reply to North Star's status report of August 6, 2004. Consolidation for purposes of trial North Star asserts that the three pending cases each involve issues of administration of the lease and virtually identical witnesses. North Star also claims that we previously agreed to consolidation of case 98-168C and 02-1632C for purposes of trial. Our "agreement" that case 02-1632C should be consolidated with case 98-168C was expressed in the conclusion of our discovery report filed March 7, 2003. North Star's reference to that report is out of context. In that report we specifically explained the significant differences between those cases. We explained that the scope of the allegations in case 02-1632C will require substantial discovery, different witnesses, and experts, which are not necessary in case 98-168C. Indeed, as described below, discovery in case 98-168C will be concluded with a few outstanding items. Also North Star's third case, 03-2699C had not been filed at the time of our March 2000 discovery report. As

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described below, that case is similar in scope to 98-168C. Thus, to the extent we "agreed" that it would be appropriate to consolidate case 98-168C and 02-1632C for trial, we respectfully amend our position. In our March 2003 discovery report, we sought litigation efficiency and judicial economy by consolidating two cases for trial. However, it is unmistakable in that report that we believed that consolidation for trial would mean that trial of case 98-168C would be delayed to accommodate the extensive discovery necessary for case 02-1632C. Now, with the addition of case 03-2699C, consolidation of all three cases is inappropriate and will not be efficient. As we extensively described in the March 7, 2003 discovery report, case 02-1632C concerns North Star's claim for 13 million dollars in damages, allegedly rising from the Government's actions beginning in 1985. See Complaint ¶ 9. That complaint is based upon the "day-to-day administration of the housing site" and a litany of vague allegations of Government impropriety over the course of the contract. See Complaint ¶¶ 14-8. In its complaint, North Star complains about a host of allegedly disparate treatment of its development compared to other housing developments at Fort Wainwright. See Complaint at pp. 8-10. North Star also intends to pursue in that case the Government's activities regarding fencing at all of the military housing at Fort Wainwright, see Complaint ¶¶ 11-12, as well as 13 years of work authorizations. See Complaint pp. 12-17. Based upon that, we explained that discovery in case 02-1632C will require substantial time. We also noted in the March 7, 2003 report that our defense to 02-1632C will include a detailed examination of the maintenance of this housing development over the life of the contract. It is North Star, pursuant to the terms of this contract, that is

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responsible for the maintenance and upkeep of this housing project. We will pursue real estate assessments and expert evaluations. If diminution of this property occurred, we will demonstrate that it was North Star that failed to perform its maintenance responsibilities and thus diminished the value of the property. In contrast, case Nos. 98-168C and 03-2699C, seek declaratory relief and unspecified damages that likely amount to thousands of dollars. Discovery is essentially complete in 98-168C. Case No. 98-168C is nearly ready for trial. Further, the issues have narrowed since North Star's original complaint and may narrow further pending the outcome of this Court's ruling upon North Star's motion for summary judgment. Although North Star alleges outstanding discovery requests, we believe that judicial economy and the interests of the parties will be best served by setting case No. 98-168C for trial. A trial of two or three days will be sufficient to try this case. Similarly, case 03-2699C involves numerous appeals of contracting officer final decisions. Although no discovery has been exchanged in this case, the issues have been partly developed through the claims and contracting officer final decisions. The parties could be ready for trial of 03-2699C within the next nine months. The Court should consolidate the case with Case No. 98-168C. We object to consolidating a potential fourth complaint with any of the current three cases at this time. We have not received the complaint and we are not in a position to state whether the issues are appropriate for consolidation. Further, we respectfully submit that no order should be entered regarding the time for North Star to file, the United States to answer, discovery and most certainly trial, in an case that has not yet been filed.

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VI.

Discovery in Case No. 98-168C We object to North Star's proposal that the Court's July 17, 2002, orders

regarding discovery should be re-activated to impose a deadline of August 16, 2004. To conclude discovery in case 98-168C, we fully intend to discharge outstanding discovery obligations. However, we respectfully propose a deadline of October 1, 2004 to either produce the requested documents or request appropriate relief from the Court's previous order. A October 1, 2004 deadline is necessary because defendant's counsel is out of the office the week of August 9, 2004. Counsel for defendant will also be unavailable Monday the 16th and has depositions scheduled for the following two weeks. In addition, due to the passage of time, and out of due diligence, we will have to re-request the documents from the appropriate personnel. Army personnel will have to conduct research to determine what documents would be responsive to the outstanding requests. North Star will suffer no prejudice as a result of a October 1, deadline. VII. Scheduling

As noted above, the issues in case No. 02-1632C have not been investigated. Nor do the issues in that case need to be investigated to proceed to trial in case 98-168C. Defendant respectfully submits the following schedule for case no 98-168C: 1. October 1, 2004: 2. December 7, 2004: 3. February 14, 2004: 4. March 15, 2004: 5. July 15, 2005: Deadline for defendant to respond to Plaintiff's alleged outstanding discovery issues as noted above. Trial of Case No. 98-168C (if tried separately) Discovery ends in Case No. 03-26699C and (if consolidated) Case No. 98-168C Trial of Case No. 03-26699C Discovery ends in Case No. 02-1632

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6. July 29, 2005: 7. August 12, 2005: 8. September 9, 2005: 9. October 3, 2005: 10. October 17, 2005: VIII.

Meeting of Counsel to exchange exhibits/witness lists on Case No. 02-1632. Deadline for submission of Plaintiff's Memorandum of Contentions of Fact and Law on Case No. 02-1632. Deadline for submission of Defendant's Memorandum on Case No. 02-1632. Pretrial Conference on Case No. 02-1632 Trial of Case No. 02-1632

North Star's Response to the Government's Motion to Dismiss

North Star has asked the Court that its response to the Government's Motion to Dismiss be scheduled for two (2) weeks after the Court issues its ruling upon North Star's Motion for Summary Judgment. We do not object to this request. IX. North Star Requests Release of the in Camera Filings of the Government We object to North Star's request for the release of the in camera submissions which accompanied our status reports. Release of these statements would be inappropriate for several reasons. First, our status reports informed North Star of the nature of the in camera statements. Second, the in camera statements communicated confidential details regarding the Government's investigation of a potential fraud case. Third, although the Government has elected not to file a criminal complaint at this time, the Government retains an interest in not revealing its sources and methods of investigation. Fourth, North Star has no requirement for the in camera statements. Dated August 13, 2004

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/David M. Cohen DAVID M. COHEN Director

OF COUNSEL: Anne Nelson Roth Assistant District Counsel United States Army Corps of Engineers Alaska District

s/Donald E. Kinner DONALD E. KINNER Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7561 Attorneys for the Defendant

August 13, 2004

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Certificate of Filing I hereby certify that on August 13, 2004 a copy of foregoing "Defendant's Reply to Plaintiff's Status Report of August 6, 2004" 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/Donald E. Kinner