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

Case 1:98-cv-00543-ECH

Document 123

Filed 11/26/2003

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UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________ ____________________________________ BEN B. FLOYD, TRUSTEE of the Bankruptcy Estate of Gold Line Refining, Ltd., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) GOLD LINE REFINING, LTD., through its trustee Ben B. Floyd,

No. 98-543C (Judge Hewitt)

No. 03-2245C (Judge Hewitt)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO CONSOLIDATE Plaintiffs, Gold Line Refining, Ltd. through its trustee, Ben B. Floyd, and Ben B. Floyd, Trustee of the Bankruptcy Estate of Gold Line Refining, Ltd., (hereinafter collectively referred to as "Gold Line") hereby submit their opposition to the Defendant's (the "Government" or "DESC") Motion to Consolidate Gold Line Refining, Ltd. v. United States, No. 98-543C ("Gold Line I") and Ben B. Floyd, Trustee of the Bankruptcy Estate of Gold Line Refining, Ltd. v. United States, No. 03-2245C ("Gold Line II"). As more fully addressed in Gold Line's Memorandum in Support of Plaintiffs' Opposition to Defendant's Motion to Consolidate, Gold

Case 1:98-cv-00543-ECH

Document 123

Filed 11/26/2003

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Line believes that the potential for delay to Gold Line I if the cases were consolidated outweighs the procedural efficiency that may result from consolidation. Gold Line I is fairly advanced in the litigation process. Gold Line I has survived a motion to dismiss (Gold Line Refining, Ltd. v. United States, 43 Fed. Cl. 291 (1999)), has proceeded past the summary judgment stage (Gold Line Refining, Ltd. v. United States, 54 Fed. Cl. 285 (2002)), and currently is in discovery. Gold Line II, on the other hand, is in the early stages of the litigation. DESC has yet to file an Answer in Gold Line II. Gold Line anticipates that, in lieu of filing an Answer, DESC will file a Motion for Summary Judgment. Proceeding through the summary judgment stage in Gold Line II will take several months at a minimum. It took five (5) months to resolve the summary judgment motions in Gold Line I. There is no reason to delay Gold Line I while summary judgment motions are pending in Gold Line II. Expert reports will need to be submitted in Gold Line II after the motions for summary judgment have been resolved by the Court. Gold Line I and Gold Line II involve different types of fuel (two types of jet fuel and marine diesel fuel) with different methods of valuing them. The Gold Line I expert reports, which have already been submitted, cannot be used for Gold Line II, so no efficiency will be gained by consolidation. Gold Line anticipates that it will take several months after the Court issues its decision on the summary judgment motions to submit the Gold Line II expert reports. In addition to the delay that would result from consolidation, the cases also present some separate legal issues with regard to the Government counterclaims. Contrary to DESC's statement in its Motion to Consolidate, DESC did not assert a counterclaim in its July 1, 1997 final decision in Gold Line I. DESC only asserted a potential $5.4 million counterclaim in its

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Case 1:98-cv-00543-ECH

Document 123

Filed 11/26/2003

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April 10, 2003 final decision in Gold Line II. Therefore, consolidation will not improve the opportunity and the ability of the Court and the parties to address the counterclaim and offset claim issues as the Government asserts. Moreover, to assert a counterclaim in Gold Line II, DESC must seek and obtain a lifting of the automatic stay from the Bankruptcy Court. This will likely cause further delay. The interest of judicial economy does not outweigh the potential for delay that may result from consolidation. Consolidating the cases will significantly delay the progress of Gold Line I. In addition, Gold Line II has issues unrelated to Gold Line I ­ namely the valuation of JP-4 type jet fuel and F-76 marine diesel and the issue of DESC's right to assert a counterclaim. Therefore, Gold Line respectfully requests that the Court deny DESC's Motion to Consolidate the cases.

Respectfully submitted, s/Ronald H. Uscher Bastianelli, Brown & Kelley, Chtd. Two Lafayette Centre 1133 21st Street, N.W. Suite 500 Washington, D.C. 20036 (202) 293-8815 (202) 293-7994 (facsimile) Counsel for Plaintiffs

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Case 1:98-cv-00543-ECH

Document 123

Filed 11/26/2003

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Of Counsel: Donald A. Tobin Lori Ann Lange Bastianelli, Brown & Kelley, Chtd. Two Lafayette Centre 1133 21st Street, N.W. Suite 500 Washington, D.C. 20036 (202) 293-8815 (202) 293-7994 (facsimile) Dated: November 26, 2003

m:\flyd\002\Opposition to Motion to Consolidate

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