Free Joint Status Report - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS APACHE APARTMENT OF OWATONA, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 96-700C (Judge Block)

JOINT STATUS REPORT Pursuant to the Court's October 7, 2004 order, the parties report that fact and expert discovery has been completed in accordance with that order. In addition, the parties submit the

following separate statements regarding the proper course of further proceedings. I. Plaintiffs' Statement Plaintiffs desire to bring their claims to resolution in an expeditious manner. At the same time, as plaintiffs expressed in

their motion to stay (dated February 22, 2005), they remain concerned about the potential for duplication of effort and inconsistent results should this case be tried before the Federal Circuit rules in the pending appeal in Independence Park v. United States, Nos. 05-5034, 05-5035 (Fed. Cir.) and/or before the Court of Federal Claims rules in the consolidated cases of Cienega Gardens v. United States, No. 94-1C (Fed. Cl.) and

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Chancellor Manor v. United States, No. 98-39C (Fed. Cl.).1

Most

significantly, plaintiffs are concerned about the danger that this case might have to go to trial two times depending on the outcome of these closely related matters. In its Order of May 2, 2005, the Court credited these concerns and concluded that "following discovery and the filing on June 8, 2005 of the Joint Status Report, either party may revisit in a proper motion whether a stay of proceedings would at that time be appropriate." Order at 2. Thus, plaintiffs are

considering filing a renewed motion for a stay of proceedings in the near future. At the same time, however, it is possible that

the related cases referenced above will be resolved prior to the January 2006 trial date suggested by defendant herein. Thus,

plaintiffs will continue to monitor the progress of the related cases and bring a renewed motion for stay, if any, at the appropriate time.

Plaintiffs understand that the Independence Park case is close to being fully briefed to the Federal Circuit. In Cienega Gardens and Chancellor Manor, the parties have completed post-trial briefing and oral argument and are awaiting a decision from the court. 2

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Finally, should this case go to trial in early 2006,2 as suggested by defendant, plaintiffs request that the trial take place in Minneapolis, Minnesota. All of the properties at issue

are located in Minnesota, including two in the Twin Cities metro area; all of plaintiffs' fact and expert witnesses reside in Minnesota; and at least two of defendant's likely witnesses reside in the Twin Cities area. In addition, plaintiffs will

request that the Court conduct a site visit of one or more of the properties at issue during the course of the trial. II. Defendant's Statement Defendant expects that this case will require a trial, and requests that the Court conduct a status conference to set a pretrial and trial schedule. Because lead counsel for defendant is

scheduled for trials commencing on August 15, 2005, and October 17, 2005, defendant proposes that a trial of this case commence no earlier than January 2006. Defendant concurs that Defendant

trial be conducted in Minneapolis, Minnesota.

understands from counsel for plaintiffs that two plaintiffs, New Goldendale Homes and New Howard Lake, will voluntarily dismiss

Plaintiffs filed their expert report in this matter on March 8, 2005 in accordance with the Court's scheduling order. However, based in large part on the expected upcoming decisions in related cases, plaintiffs intend to submit an amended report prior to the trial of this matter. Plaintiffs would not object to their expert witness being re-deposed after the amended report is completed, should defendant desire to do so. Defendant's proposed trial schedule will leave more than sufficient time for any such further deposition to occur. 3

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their claims. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Jeff H. Eckland JEFF H. ECKLAND, ESQ. FAEGRE & BENSON, LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Attorney for Plaintiffs June 8, 2005

s/Brian M. Simkin BRIAN M. SIMKIN Assistant Director

s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 307-0361 Facsimile: (202) 514-7965 Attorneys for Defendant June 8, 2005

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CERTIFICATE OF FILING I hereby certify that on June 8, 2005, a copy of foregoing Joint Status Report was filed electronically. I understand that

notice of this filing will be sent to all parties by operation of the Court's electronic filing system. filing through the Court's system. s/Timothy P. McIlmail TIMOTHY P. MCILMAIL Parties may access this