Free Motion to Dismiss - Rule 41(a) - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 284

Filed 06/30/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ CAROL AND ROBERT TESTWUIDE, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. _____________________________________ ) ) ) ) ) ) ) ) ) ) )

No.: 01-201L (Judge Victor J. Wolski)

JOINT MOTION TO DISMISS PLAINTIFF ANN WERNER Plaintiffs and Defendant, pursuant to RCFC 41(b), hereby move to dismiss the claims of Plaintiff, Ann Werner. After the parties reached a tentative settlement prior to trial in October 2006, Counsel for Plaintiffs attempted to contact all Plaintiffs to inform them of the terms of settlement, and to seek their acceptance or rejection of the settlement. Counsel were unable to locate Plaintiff Ann Werner by mail or telephone. Counsel subsequently made attempts to locate Ms. Werner by internet search, computerized database search using the service Accurint at multiple levels of sophistication. Counsel interviewed neighbors of Ms. Werner and retained a private investigator in an attempt to follow potential leads and locate her. Finally, Counsel published a website (www.seachforannwerner.com) in an attempt to constructively notify Ms. Werner of the settlement and obtain leads as to her whereabouts. These efforts have been reported to the Court in Joint Status Reposts filed on October 29, 2007, January 4, 2008, March 24, 2008, and May 27, 2008. Despite these efforts, Counsel has been unable to locate Ms. Werner.

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Case 1:01-cv-00201-VJW

Document 284

Filed 06/30/2008

Page 2 of 3

Pursuant to RCFC 41(b), a court has the discretion to dismiss an action involuntarily for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962); Alvarez v. Simmons Mkt. Research Bureau, 839 F.2d 930, 932 (2d Cir.1988). "The primary rationale underlying a dismissal under 41(b) is the failure of plaintiff in his duty to process his case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir.1982) (citing Messenger v. United States, 231 F.2d 328, 331 (2d Cir.1956)). This duty is imposed to further "the strong policy favoring prompt disposition of cases." Id. Counsel for Plaintiffs has made reasonable diligent efforts to locate Ms. Werner and notify her of the settlement in this case. Ms. Werner, for her part, has failed to maintain contact with Counsel, leaving no alternative to the present motion. WHEREFORE, the parties request that the Court dismiss the claims of Plaintiff Ann Werner, and grant such further relief as justice may require. Respectfully submitted,

/s/ Martin E. Wolf Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected]

/s/ Steven D. Bryant_____ Steven D. Bryant Environment & Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 (202) 305-0506 fax [email protected] Attorney of Record for Defendant pursuant to Rule 83.1(c)(1)

Attorney of Record for Plaintiffs pursuant to Rule 83.1(c)(1)

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Case 1:01-cv-00201-VJW

Document 284

Filed 06/30/2008

Page 3 of 3

Of counsel: Kieron F. Quinn Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 [email protected] Jack E. Ferrebee Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected]

Of counsel: Robert J. Smith Navy Litigation Office 720 Kennon Street Rm. 233 Department of the Navy Washington, D.C. 20374

Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles Lustig Shuttleworth, Ruloff, Swain, Haddad & Morecock 4525 South Boulevard, Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]

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