Free Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 251

Filed 10/29/2007

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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 STATUS REPORT Plaintiffs and Defendant hereby submit the following status report regarding the pending conclusion of the Settlement and Agreement entered into by the parties on May 14, 2007. I. PLAINTIFFS WHO HAVE NOT BEEN LOCATED Counsel for the Plaintiffs have been unable to locate the following two Plaintiffs despite telephone calls, written correspondence, computer searches, and the retention of a private investigator: James and Jennifer Vallance, 3117 Bloomfield Court, Virginia Beach, Virginia 23456 Ann Werner, 1272 Alanton Drive, Virginia Beach, Virginia 23454 The parties respectfully request that the Court order publication in a newspaper with nationwide circulation for a period prescribed by the Court. Should the Plaintiffs named above fail to respond within the prescribed period, the parties request that the named Plaintiffs be dismissed with prejudice. II. PLAINTIFFS REQUESTING DISMISSAL WITH PREJUDICE

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The following four Plaintiffs have requested to be dismissed with prejudice without participating in the settlement: Woodrow and Rosanne Roble, 2501 Consolvo Drive, Virginia Beach, Virginia 23454 Larry and Paula LaRossa, 2124 Land of Promise Road, Chesapeake, Virginia 23322 Leo and Renee Anthony, 2676 Level Loop Road, Virginia Beach, Virginia 23456 William and Sally Shelhorse, 536 Southside Road, Virginia Beach, Virginia 23451 III. PLAINTIFFS REJECTING THE SETTLEMENT The following five Plaintiffs have rejected the settlement: Gary and Mary Hubbard Alexei and Natalija Savostyanov Shirley Hall Doris Jane Edney William III and Tracy Himchak The Plaintiffs intend to continue representing Gary and Mary Hubbard, Alexei and Natalija Savostyanov, Shirley Hall and Doris Jane Edney. The Plaintiffs will move to withdraw from representation of William III and Tracy Himchak. The Plaintiffs request that the Court consolidate the claims of the Plaintiffs who have rejected the settlement with those claims pending in Askins v. United States. The Defendant opposes this proposal. Consolidation is not properly before the Court at this time, because Plaintiffs have not filed a motion for consolidation under RCFC 42.1. If such a motion were filed, Defendant would oppose. The Askins v. United States, No. 07-650L (filed September 5, 2007) and Abernethy v. United States, No. 07651L (filed September 5, 2007) complaints were filed more than six years after Plaintiffs' July 1999 alleged date of taking. Consequently, the claims associated with these complaints are in a completely different posture than the claims of the Plaintiffs that rejected the settlement. Indeed, Defendant will be filing a motion to dismiss the claims in Askins and Abernethy in lieu of filing an Answer.

Case 1:01-cv-00201-VJW

Document 251

Filed 10/29/2007

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IV. AVIGATON EASEMENTS NOT YET SIGNED, REQUIRING REVISION AND/OR LIENS RELEASED There are avigation easements remaining to be signed by Plaintiffs. There are also avigation easements requiring revision and/or a resolution of liens. The parties have made significant progress in completing the easements, but need additional time in order to complete them. The parties request 60 days from this date within which to submit a joint discovery schedule and a joint status report with respect to the settlement and the Plaintiffs who have not been located. Respectfully submitted,

______/s/ Jack E. Ferrebee Jack Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12B Virginia Beach, VA 23451 (757) 425-5200 [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) Of counsel:

Attorney of Record for Plaintiffs pursuant to Rule 83.1(c)(1) Of counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. Resources 40 W. Chesapeake Avenue

Kelle Acock Environment Division

&

Natural

Case 1:01-cv-00201-VJW

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Suite 408 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected] Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 20374 [email protected] [email protected]

Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 (202) 305-0506 fax [email protected] Robert J. Smith Navy Litigation Office 720 Kennon Street Rm. 233 Washington Navy Yard, D.C.

Case 1:01-cv-00201-VJW

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