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

Case 1:98-cv-00419-LB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO ALLOW COMMENCEMENT OF DAMAGES DISCOVERY No. 98-419L Judge Lawrence J. Block

Case 1:98-cv-00419-LB

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I.

INTRODUCTION Defendant does not object to Plaintiffs' motion to modify Judge Turner's December 4,

1998 bifurcation order (the "Bifurcation Order") to allow commencement of damages discovery. Indeed, Defendant goes further and states that there is "no need for the case to be bifurcated." Defendant's Response to Plaintiffs' Motion to Allow Commencement of Damages Discovery ("Def.'s Resp.") at 1. Plaintiffs agree that if any liability issues remain for trial after this Court rules on summary judgment, those issues should be tried in one proceeding along with damages. At this stage, expedition is what this decade-old case demands. Plaintiffs also appreciate Defendant's helpful suggestion that the parties should confer and attempt to agree on a damages discovery schedule that will lay the foundation for setting an early trial date and hope this can be accomplished with little involvement by this Court. II. ARGUMENT A. This Court Should Reject Defendant's Apparent Contention That Discovery Be Reopened As to Liability Issues.

Despite the agreement on allowing commencement of damages discovery, Defendant's Response suggests that Defendant may envision that discovery should be open on all issues, including those that relate to liability, rather than just damages. Reopening discovery on all issues would be highly inappropriate because, as this Court has already ruled, liability discovery has been closed since December 2000. See Apr. 3, 2006 Order (Docket No. 162) (referring to Dec. 19, 2000 Order (Docket No. 92) as "ending discovery for liability issues"). In responding to Plaintiffs' motion to allow the parties to commence "damages discovery," Defendant repeatedly states it agrees that "valuation discovery" should be allowed, then explains that "valuation" encompasses both liability and damages issues. See Def.'s Resp. at 1 (claiming that "certain valuation issues must be adjudicated as part of both the liability and the just compensation phases of the case"). To be sure, "significant economic impact" is part of the three-part Penn Central liability test, and damages is the quantification of economic impact in pecuniary terms. But the critical point is that Judge Turner's 1998 Bifurcation Order, which is 1

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the subject of Plaintiffs' motion, and which has governed all past proceedings in this case, bifurcates "liability and damages" and the valuation issues involved in liability have already been the subject of extensive fact and expert testimony, which has been closed for the past six and one-half years. That evidence is before this Court on summary judgment. Plaintiffs' motion to allow damages discovery to commence is prospective: it would allow damages discovery to proceed but, as Plaintiffs clearly explained in their motion, "[l]iability discovery has been concluded since 2001, and is closed." See Pls.' Mot. at 1. Granting the motion would not--and should not--reopen liability discovery. This case must not be allowed to go backwards, as Defendant seems to envision. Two significant milestones have been achieved in this case, and neither should be undermined now. The first milestone, under Judge Turner's stewardship, was completion in 2000 of fact and expert discovery as to liability. See Docket No. 92. The second milestone, with this Court's guidance, has been completion of briefing and argument on the parties' renewed summary judgment motions on liability, a two-year process that concluded in January of this year. Together, these two accomplishments can allow resolution of all pending liability issues as a matter of law because liability discovery is over and the summary judgment motions on liability are fully presented on the existing liability record. This Court should therefore reject any suggestion that the new discovery phase should encompass any issues other than damages issues. In fact, the December 2000 close of liability discovery was the reason this Court already struck the proffered liability declaration testimony of Bruce Allen, a new appraiser (and valuation expert) whose declaration Defendant sought to introduce on summary judgment.1 See Docket No. 162.

In this regard, this Court also granted Plaintiffs' request for attorneys fees and costs relating to Defendant's attempt to utilize the testimony of Mr. Allen. Plaintiffs' fee application remains pending before this Court. See Docket Nos. 162 & 165.

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Despite the Bruce Allen ruling, Defendant claims that Dr. Mitchell, who died in 2001, is "Defendant's landfill valuation expert," and asserts that his death justifies Defendant in naming a "replacement expert." Def.'s Resp. at 2. Naming a replacement for Dr. Mitchell may or may not be appropriate, depending on the subject matter of the replacement expert's testimony. Dr. Mitchell's prior opinion testimony clearly is relevant to damages, and Defendant can replace that testimony so long as the new expert's testimony is confined to damages issues. But he or she cannot be used as a back door to reopen liability testimony. It should be noted that Defendant advised Plaintiffs and the Court of Dr. Mitchell's death in April 2001, Docket No. 103, and has never moved to reopen liability discovery or replace Dr. Mitchell as a liability expert, in the intervening six years. There is no reason, therefore, for this Court to revisit its prior ruling that additional liability experts are not allowed. B. The Court Should Disregard Defendant's Attempt to Reargue Its Summary Judgment Position.

Defendant also inappropriately restates its position on Tahoe-Sierra Preservation Council, Inc. v. Tahoe Planning Agency, 535 U.S, 302 (2002), and Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Def.'s Resp. at 1-2. Defendant even implies that the prior expert work is no longer "legally relevant evidence," and that Tahoe-Sierra calls for additional "relevant" liability evidence. Id. at 2. That argument is foreclosed. Summary judgment briefing and argument was completed months ago. Defendant never sought RCFC 56(f) relief to present new evidence, and, as pointed out above, Defendant's previous attempt to supplement the summary judgment record on liability led to the imposition of sanctions by this Court. The summary judgment record is closed. III. CONCLUSION Plaintiffs respectfully request that this Court grant their motion to allow damages discovery to commence. The Court should not revisit the prior ruling closing liability discovery. Plaintiffs agree the parties should confer regarding a damages discovery schedule, which will allow this Court to set a date for a single trial under RCFC 40 for the first available dates on its 3

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calendar a reasonable time after the conclusion of damages discovery. Plaintiffs will be happy to prepare a proposed order if the Court wishes. Dated: July 3, 2007 Respectfully submitted,

s/ Daniel D. Syrdal Daniel D. Syrdal Heller Ehrman LLP 701 Fifth Avenue, Suite 6100 Seattle, WA 98104-7098 Telephone: (206) 447-0900 Facsimile: (206) 447-0849 Attorneys for Plaintiffs Resource Investments, Inc. and Land Recovery, Inc. Steven S. Anderson, of counsel Malaika M. Eaton, of counsel

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