Free Motion in Limine - District Court of Federal Claims - federal

Case 1:98-cv-00533-CFL

Document 105

Filed 11/21/2006

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 98-533 T, et al. (Judge Lettow) __________ FENTON GINGERICH, et al., Plaintiffs v. UNITED STATES, Defendant

__________ DEFENDANT'S MOTION IN LIMINE __________

Pursuant to RCFC Appendix A, ¶ 13(a) and (b), defendant moves this Court for an order excluding at trial any exhibits and witnesses offered by plaintiffs at the trial of the abovecaptioned case because of plaintiffs' repeated failure to provide either exhibit or witness lists. On January 30, 2006, this Court issued a scheduling order requiring the parties to exchange the preliminary exhibit and witnesses lists required by RCFC Appendix A, § 13, on September 18, 2006. On motion of defendant, the Court extended that deadline to September 27, 2006. Plaintiffs did not provide any exhibit or witness lists to defendant on that date. The Court's January 30, 2006, Order set a deadline of October 2, 2006, for plaintiffs to file their final witness and exhibits lists. Plaintiffs filed neither exhibit nor witness lists on that date.

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Case 1:98-cv-00533-CFL

Document 105

Filed 11/21/2006

Page 2 of 3

On October 24, 2006, a status conference was held to discuss, among other things, the plaintiffs' failure to file the exhibit or witness lists as required by the Court's January 30, 2006, Order. At that conference the trial was continued to December 11, 2006, and plaintiffs' deadline for filing their exhibit and witness lists was extended to November 7, 2006. This was confirmed by the Court's November 2, 2006, Order. As of the date of this filing of this motion, plaintiffs have filed neither a witness nor exhibit list. Plaintiffs have also not provided any lists of exhibits or witnesses to defendant. Plaintiffs have not provided to defendant any reason for their failure to comply with the Court's January 30, 2006 and November 2, 2006, Orders, or communicated with defendant's counsel regarding this matter. RCFC Appendix A, § 13(a) provides that if an exhibit list has not been filed by the deadline set forth in the Court's Order, then no exhibits may be used by that party at the trial. The rule states (emphasis added): Failure to list an exhibit shall result in exclusion of the exhibit at trial absent agreement of the parties to the contrary or a showing of a compelling reason for the failure. RCFC Appendix A, § 13(b) provides that if a witness list has not been filed by the deadline set forth in the Court's Order, then no witnesses may be used by that party at the trial. The rule states (emphasis added): Failure of a party to list a witness shall result in the exclusion of the witness's testimony at trial absent an agreement of the parties to the contrary or a showing of a compelling reason for the failure. Plaintiffs have not listed any exhibits or witnesses to be used at the trial of this case. As a result of their failure, RCFC Appendix A, §§ 13(a) and (b) specify that plaintiffs not be allowed to use any exhibits or witnesses at the trial.

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Case 1:98-cv-00533-CFL

Document 105

Filed 11/21/2006

Page 3 of 3

The circumstances of this case compel excluding at trial any exhibits and witnesses that may be offered by plaintiffs since plaintiffs have failed to comply with three different Courtordered deadlines. After being apprised of plaintiffs' failure to comply with the deadlines set forth in the Court's January 30, 2006, the Court granted plaintiffs a second chance, allowing them until November 7, 2006, to file their exhibit and witness lists. Plaintiffs failed to take advantage of that second chance. Plaintiffs have not provided any explanation to defendant's counsel or to the Court for this failure. Therefore, pursuant to RCFC Appendix A, § 13(a) and (b), defendant respectfully submits that plaintiffs should be precluded from introducing any exhibits or witnesses at the trial of this case.

Respectfully submitted, s/Benjamin C. King, Jr. BENJAMIN C. KING, JR. Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6506 EILEEN J. O'CONNOR Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section MARY M. ABATE Assistant Chief s/Mary M. Abate Of Counsel November 21, 2006

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