Free Motion to Strike - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

Document 182

Filed 07/18/2003

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

No. 98-168C (Judge Allegra)

MOTION TO STRIKE PLAINTIFF'S STATUS REPORT We respectfully request the Court to strike the status report filed by North Star on July 15, 2003, because there is no basis in the Court's orders concerning the investigation by the Government for plaintiff's status report, it is an attempt to ascertain confidential information submitted to the Court, and it is an inappropriate attempt to make arguments upon the merits of the case. Pursuant to the Court's orders, we provided the Court with two submissions for in camera consideration by the Court. On April 3, 2003, the Court ordered the stay of proceedings, and the submission of a status report by the Government on July 1, 2003. Despite the Court's order, on May 16, 2003, North Star requested reconsideration by the Court to lift the stay of this matter. In an order on May 20, 2003, the Court denied North Star's motion. North Star's filing of a status report on July 15, 2003, follows our in camera submission to the Court on July 1, 2003. In its "status report," North Star has again requested that the Court lift the stay of this case. North Star's request is based upon an assertion that it has not been contacted by an investigator and it is not familiar with the investigation.

Case 1:98-cv-00168-FMA

Document 182

Filed 07/18/2003

Page 2 of 5

North Star has no basis to file this "status report." In its report, North Star asserts that it "submits this status report regarding developments since the Court entered a stay." Plaintiff's Status Report at 1. However, North Star has not been requested by the Court to report upon "developments" in the investigation. Nothing in the rules of this Court permit North Star to file a status report without requesting leave of the Court. Accordingly, the Court should strike the status report filed by North Star. North Star's "status report" is a thinly veiled attempt to gain information to which it is not entitled. The declarations submitted to the Court upon which the stay was entered, and the declaration submitted to the Court on July 1, 2003, were submitted in camera. Accordingly, North Star has not been permitted access to the information in those declarations. Indeed, that is the purpose of our submission of these declarations in camera. In camera means the information is for the exclusive consideration by the Court, in chambers, in private. Blacks Law Dictionary 684 (5th Edition, 1979). Contrary to the label supplied by North Star, its "status report" is its second request for reconsideration for the Court to lift the stay. The premise for this request is that the "Government has done nothing to begin, much less pursue that investigation." Plaintiff's Status Report at 3. However, North Star asserts in its status report that it does not possess knowledge of the investigation. Plaintiff's Status Report at 1-3. North Star's assertions are conflicting, and both are incorrect. North Star was informed, of our initial in camera submissions, which included a declaration that the criminal investigation of North Star is being pursued by the Assistant United States Attorney, and will be conducted by a grand jury. See Defendant's In Camera Submission, March 28, 2003. Also, by service of our in camera submission on July 1,

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Case 1:98-cv-00168-FMA

Document 182

Filed 07/18/2003

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2003, North Star was informed that the declaration submitted in camera specifically states that the investigation is proceeding with continuing tasks and activities. See Defendant's Motion for Leave to File Defendant's in Camera Submission. These declarations contain confidential information regarding the criminal investigation of North Star. North Star's "status report" details its efforts to obtain information concerning the investigation. Plaintiff's Status Report at 1-3. Its complaint in this "status report" is that it has not been informed of the investigation activities. Its "status report" is merely North Star's further attempt to obtain the confidential information which has been provided to the Court. North Star's claim that an investigation is not being conducted is a challenge to the information provided in the declarations which have been submitted to the Court, information it does not possess. As such, North Star's claim is baseless speculation. Accordingly, the Court should strike the status report filed by North Star. North Star also utilizes its "status report" to present assertions regarding its "stockpiling," "downtime," and, presumably, carpet replacement claims, as well as other vague complaints regarding the Government's contractual performance. Plaintiff's Status Report at 3-4. The Government vigorously disputes the claims in North Star's complaint, and the contracting officer will address North Star's other allegations in response to any claim it submits. There is no basis for North Star to present these allegations in its "status report" concerning a criminal investigation. Accordingly, the Court should strike the status report filed by North Star. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

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Case 1:98-cv-00168-FMA

Document 182

Filed 07/18/2003

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s/ David M. Cohen DAVID M. COHEN Director OF COUNSEL: ANNE N. 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

July 18, 2003

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Case 1:98-cv-00168-FMA

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Filed 07/18/2003

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Certificate of Filing I hereby certify that on July 17, 2003 a copy of foregoing "DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S STATUS REPORT" 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

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