Free Motion for Status Conference - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 200

Filed 09/18/2006

Page 1 of 3

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

No.: 01-201L

Judge Victor J. Wolski

DEFENDANT UNITED STATES' MOTION FOR A STATUS CONFERENCE AND TO REVISE THE JANUARY 19, 2006 SCHEDULING ORDER Defendant United States of America, moves for a Status Conference and to Revise the Scheduling Order, dated January 19, 2006, which set the first test case trial for October 16 through November 3, 2006, at the United States Federal District Court in Norfolk, Virginia. Defendant has conferred with counsel for plaintiffs regarding the proposed trial schedule as set forth in this motion and plaintiffs oppose. Defendant was informed on August 31, 2006 that the test case trial would not be held in the Federal District Court in Norfolk, Virginia and that a courtroom was requested in the Chesapeake Circuit Court, Chesapeake, Virginia, but not yet confirmed. On September 12, 2006, defendant learned that a courtroom in the Chesapeake Circuit Court was reserved for the test case trial from October 16 to November 10, 2006; however, the courtroom was unavailable on October 17-18 and 26 because of appellate arguments. Defendant was further advised that the computer equipment used for electronic presentation would have to be removed from the courtroom during the days the state court presided over appellate arguments.

Case 1:01-cv-00201-VJW

Document 200

Filed 09/18/2006

Page 2 of 3

Several months ago defendant coordinated with its witnesses, many of whom are not from the Hampton Roads area, and made its hotel arrangements based on a trial from October 16 through November 3, 2006. Unfortunately, defendant's hotel reservation cannot be extended beyond November 3, and some of defendant's witnesses are unavailable the week of November 6, 2006. Based on several discussions with opposing counsel, it is apparent that the remaining 12 days between October 16 and November 3 are insufficient for the parties to complete the presentation of the evidence. In light of the unforeseen scheduling difficulties, defendant requests a 16-day trial1 with 11 days in Chesapeake, Virginia and the remaining 5 days in Washington, D.C. at the United States Court of Federal Claims. Given that the Chesapeake Circuit Court is unavailable on October 17 and 18 and the logistical issues with setting up and then removing the electronic equipment, defendant requests that trial begin on October 19 instead of October 16. Defendant recommends conducting the first portion of trial in Chesapeake from October 19 through November 3, 2006. Subject to the Court's availability, defendant requests that the final 5 days of trial take place between November 13 and November 18 in Washington, D.C. Defendant proposes the following two scenarios: 1) Plaintiffs present their entire case-in-chief beginning on October 19, 2006. Defendant will then begin its case-in-chief in the Chesapeake Circuit Court and continue through November 3rd. Defendant will then resume its case-in-chief in Washington, D.C. from November 13 through November 16, with rebuttal on November 17, 2006. 2) Alternatively, and although defendant has long opposed and continues to oppose bifurcation, in light of the unforeseen scheduling difficulties, defendant is agreeable to have the liability phase concluded during the 11 days available beginning on October 19, 2006 and that both sides present
Defendant further moves that the parties split the time available for trial equally. The time a party uses to conduct direct or cross examination would reduce that party's 50% share of the time available for trial.
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Case 1:01-cv-00201-VJW

Document 200

Filed 09/18/2006

Page 3 of 3

evidence on just compensation in a separate session to be scheduled separately but shortly thereafter. Specifically, defendant proposes that both sides present their case-in-chief on liability in Chesapeake from October 19 through November 3, 2006, and both sides present their case on just compensation in Washington, D.C. from November 13 through November 17, 2006 (subject to the Court's availability). Defendant respectfully requests the Court schedule a status conference to discuss these matters. Dated: September 18, 2006 Respectfully submitted,

/s/ Steven D. Bryant Steven D. Bryant Kelle S. Acock Environmental & Natural Resources Division United States Department of Justice 601 D Street, NW, Rm. 3205 Washington, D.C. 20004 Counsel for Defendants Of Counsel: Robert J. Smith Mary Raivel Navy Litigation Office 720 Kennon Street Washington Navy Yard, D.C. 20374 CDR Dominick Yacono JAGC, USN Commander Navy region Mid-Atlanic, Code (00LE) 1510 Gilbert Street Norfolk, VA 23511-2737