Free Status Report - 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

PLAINTIFF'S STATUS REPORT Plaintiff North Star Alaska Housing Corporation ("North Star"), through counsel, hereby submits its status report pursuant to the Court's order of July 7, 2004. By Order dated April 3, 2003, the Court stayed Case Nos. 98-168C and 02-1632C for all purposes, including discovery and briefing on North Star's summary judgment motion in Case No. 98-168C, based on in camera submissions by the Government that a CID investigation of North Star was being conducted. During the stay of these cases, North Star filed a third lawsuit, Case No. 03-2699C, which was stayed by Order of the Court dated March 1, 2004. North Star's Motion for Summary Judgment in Case No. 98-168C is currently pending before the Court. However, even if it is resolved entirely in North Star's favor, Count V which details the , Government's bad faith conduct in administering the Lease, remains outstanding. The three pending cases involve allegations respecting the Government's administration of the same Lease and will involve virtually identical witnesses. Each was stayed by the Court while the CID was pending due to their relationship to one another, and indeed, in its March 1 Order in Case No. 03-2699C, the Court described Cases 98-168C and 02-1632C as "two related matters" to Case No. 03-2699C. Moreover, both North Star and the Government filed reports

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which endorsed a joint trial of Case Nos. 98-168C and 02-1632C. 1 As detailed below, these three related cases should proceed on the same discovery and trial track, with trial of all issues to commence in the fall of 2005. 2 I. Discovery in Case No. 98-168C Remains Outstanding On June 3, 2002, the Court issued an Order granting, in part, North Star's motion to reopen written and deposition discovery in Case No. 98-168C. North Star served supplemental interrogatories and requests for production of documents on the Government on June 7, 2002. The Government's response, dated June 28, 2002, was deficient. The Court conducted a hearing on these deficiencies on July 16, 2002, and issued an Order on July 17, 2002 directing the Government to supplement its deficient discovery responses within two days. The case was stayed two days later, on July 19, 2002, so that the parties could attempt to reach a settlement. As set forth in detail North Star's February 26, 2003 Discovery Report in Case No. 98-168C, several relevant and discrete discovery items listed in the Court's Order of July 17, 2002 remain outstanding: (1) The Government must provide an affidavit from counsel detailing the steps he took to obtain documents responsive to Requests for Production Nos. 7, 10, and 11, and to certify his belief that no responsive documents exist. (2) The Government must produce all generic training documents, manuals and procedures that bear on real estate contract decisions. (3) The Government must produce documents respecting the command interest in clarifying end of Lease options.
See North Star's Discovery Plan and Suggested Schedule, filed February 26, 2003 in Case No. 02-1632C, and the Government's Discovery Report, filed March 7, 2003 in Case No. 98-168C, in which the Government notes "the close correlation of the many issues in case 02-1632C to the central issues in case 98-168" and states that "we now believe it would be suitable to consolidate these cases. . ." 2 North Star is in the process of preparing a fourth lawsuit to address issues that have arisen since Case No. 03-2699 was filed. This fourth lawsuit, which involves the Government's conduct under the same Lease and will require testimony from the same witnesses, should also proceed on the same discovery and trial schedule as Case Nos. 98-18C, 02-1632C, and 03-2699C. This suit will be filed no later than September 1, 2004.
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North Star respectfully suggests that the Government be ordered to comply with the outstanding items in the July 17 Order on or before August 16, 2004. II. Scheduling North Star proposes the following schedule to permit all cases pertaining to the Government's administration of the Lease to be tried together. The proposed schedule is consistent with Appendix A to the Rules of the Court of Federal Claims, and largely parallels the timeframes schedule suggested by the Government in its March 7, 2003 Discovery Report: · August 16, 2004: Deadline for Government to make its supplemental submissions in Case No. 98-168C per the Court's Order of April 3, 2003. North Star will file its Fourth Complaint no later than this date. Deadline for the Government to Answer the Fourth Complaint (or 60 days after the Complaint is filed, whichever is sooner).

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September 1, 2004:

November 1, 2004:

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November 15, 2004: Deadline for Joint Preliminary Status Report. December 1, 2004: July 15, 2005: July 29, 2005: August 12, 2005: Document and Deposition Discovery May Commence. Deadline for Completion of Discovery. Meeting of Counsel to exchange exhibits/witness lists. Deadline for submission of Plaintiff's Memorandum of Contentions of Fact and Law. Deadline for submission of Defendant's Memorandum. Pretrial Conference. Trial may begin.

September 9, 2005: October 3, 2005: October 17, 2005:

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III.

North Star's Response to the Government's Motion to Dismiss On July 17, 2002, the Government moved to dismiss Count V (Breach of Good Faith and

Fair Dealing) and part of Count VII which pertained to the 1998 incentive fee. The case was stayed prior to North Star responding to this motion. In its June 18, 2004 Response to Plaintiff's Motion for Summary Judgment, the Government raised identical arguments with respect to the 1998 incentive fee, to which North Star responded in its July 14, 2004 Reply, and which will presumably be addressed by the Court in its ruling. North Star requests that its response to the Government's Motion to Dismiss be scheduled for two (2) weeks after the Court issues its ruling on North Star's Motion for Summary Judgment. IV. North Star Requests Release of the In Camera Filings of the Government Per the Court's April 3, 2003 Order, the Government filed in camera status reports every two months respecting the CID, on the basis of which the Court continued the stay of proceedings. On July 1, 2004, over a year after the stay was imposed due to the CID, the Government filed a Status Report with the Court indicating that the criminal investigation had been terminated, and recommending that the stay be lifted for all purposes. By order of July 7, 2004, the Court lifted the stay for all purposes. North Star requests that the Court exercise its discretion and, in the interest of fairness and equity, release the status reports and related documents that the Government filed with the Court in camera now that the investigation is over.

DATED: August 6, 2004

Respectfully submitted, s/ Paul W. Killian ____________________________________ PAUL W. KILLIAN

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Akin, Gump, Strauss, Hauer & Feld, L.L.P. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 887-4000

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Status Report was served electronically on this 6th day of August, 2004 upon:

Donald E. Kinner, Esq. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Attorney for Defendant s/ Paul W. Killian ________________________ Paul W. Killian

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