Free Motion for Extension of Time to Complete Discovery - District Court of Federal Claims - federal

Case 1:97-cv-00733-BAF

Document 106

Filed 07/02/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS A. DEAN OSWALT, REINIE OSWALT, CRAIG OSWALT, MICHELLE OSWALT, KIRK OSWALT, and STACIE OSWALT, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 97-733C (Judge Futey)

MOTION TO POSTPONE THE CLOSE OF DISCOVERY AND STAY DISCOVERY PENDING RESOLUTION OF A FORTHCOMING MOTION TO DISMISS Pursuant to the Rules of the United States Court of Federal Claims and this Court's inherent power to stay its proceedings, the United States respectfully requests that this Court postpone the close of discovery and stay proceedings pending resolution of a forthcoming motion to dismiss this case for lack of subject-matter jurisdiction. Although counsel for the United States has discussed this motion with plaintiffs' counsel generally, the Untied States has had difficulty reaching plaintiffs' counsel and therefore cannot state whether plaintiffs' counsel consents to the specific details of this motion. This case has been pending in this Court since 1997, when it was transferred from the United States District Court for the Eastern District of Washington on the ground that plaintiff's claims sounded in contract, sought more than $10,000 in relief, and therefore could be presented exclusively in this Court. See Oswalt v. United States, No. CY-96-3133-CI (E.D. Wash. Sept. 18, 1997) (transferring this case); Oswalt v. United States, No. CY-96-3133-CI, slip op. at 9 (E.D. Wash. Aug. 6, 1997) (determining that the Court of Federal Claims possessed exclusive jurisdiction). In the nearly ten years that this case has been pending in this Court, jurisdictional

Case 1:97-cv-00733-BAF

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Filed 07/02/2007

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issues of privity have been litigated and decided by this Court and the United Stated Court of Appeals for the Federal Circuit. Discovery has proceeded. Unfortunately, recently, while visiting for purposes of discovery the offices of the Wapato Irrigation Project ("the project"), the Government instrumentality alleged to have breached contracts with plaintiffs in this case, counsel for the Government learned that the project is and has been a non-appropriated fund instrumentality and that this Court almost certainly has lacked, from the outset, subject-matter jurisdiction over this case. The Government therefore respectfully requests that this Court stay discovery in this case, which closed on June 29, 2007, so that the Government may file and the parties may brief a motion to dismiss for lack of subject-matter jurisdiction.1 Such a stay is in the interests of justice because it may avoid the need for costly discovery and other proceedings in this case which may prove to be for naught. The Government is in the process of preparing its motion to dismiss and proposes to file the motion on July 20, 2007. Plaintiffs would then file their response as directed by this Court's rules, with enlargements in the discretion of the Court if necessary and appropriate. If the case ultimately is not dismissed, the Government proposes that the Court require the parties to file a joint status report within 10 days of this Court's order disposing of the motion to dismiss, in which the parties will propose a schedule for needed additional discovery. For the foregoing reasons, we respectfully request that the Court stay discovery and grant the other relief requested in this motion.

To the extent it is necessary to reopen discovery since, because of delay in communication between the parties, the close of discovery has passed, the Government respectfully requests that the Court do so. 2

1

Case 1:97-cv-00733-BAF

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director S/Bryant G. Snee BRYANT G. SNEE Deputy Director S/Brian T. Edmunds BRIAN T. EDMUNDS Trial Attorney U.S. Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 [email protected] Tel: (202) 616-8253 Fax: (202) 307-0972 July 2, 2007 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on July 2, 2007, a copy of the foregoing "MOTION TO POSTPONE THE CLOSE OF DISCOVERY AND STAY DISCOVERY PENDING RESOLUTION OF A FORTHCOMING MOTION TO DISMISS" was filed electronically. Parties may access this filing through the Court's system.

s/Brian T. Edmunds