Free Response to Motion - District Court of Federal Claims - federal

Case 1:96-cv-00700-LB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS APACHE APARTMENTS OF OWATONA, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 96-700C (Judge Block)

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR STAY Defendant, the United States, opposes plaintiffs' request for a stay of these proceedings. This case is already over

eight years old, and was stayed once for over three years: from December 16, 1997 through August 31, 2001. The length of the

stay that plaintiffs request - through any appeals of the Chancellor Manor and Cienega Gardens cases still pending before this Court - is too indefinite. And although plaintiffs state

that they expect the outcome of those cases and the Independence Park case will resolve many of the legal issues in this case, Plaintiff's Motion For Stay ("Mot.") at 7, they do not indicate that they would limit the scope of - much less request dismissal of - this case if any of the plaintiffs in those cases were not to prevail before this Court or the United States Court of Appeals for the Federal Circuit. Moreover, the Federal Circuit has indicated that, in a case in which there has not been compiled a complete record, whether a plaintiff has suffered a compensable taking in a case such as

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this requires a plaintiff-specific, ad hoc inquiry.

See

Chancellor Manor v. United States, 331 F.3d 891, 904-07 (Fed. Cir. 2003). Because none of the outcomes in Chancellor

Manor, Cienega Gardens, and Independence Park is likely to dispose of this case in its entirety, some such inquiry in this case is virtually inevitable. Plaintiffs also point to imminent expert discovery as a reason to stay this case. Mot. at 7-8. The parties, however,

have been aware both of the expert discovery dates in this case (the first of which was March 8, 2005) and of the Chancellor Manor, Cienega Gardens, and Independence Park cases for months. Indeed, counsel for plaintiffs are also counsel for Chancellor Manor plaintiffs, and Chancellor Manor was consolidated with Cienega Gardens, for trial, on August 31, 2004. In addition, the

Government's October 26, 2004 pre-trial brief in Chancellor Manor cited to the Court's published opinion in Independence Park. in granting the parties' joint motion to modify the pre-trial order in this case on October 7, 2004, the Court indicated that it would not further extend the dates in that order, which includes expert discovery dates. Finally, plaintiffs point to the Court's stay of the related case Sheyenne Development v. United States, No. 96-755C. at 8-9. 2005. Mot. And

That case, however, has been stayed only until March 28,

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For the foregoing reasons, the Court should deny plaintiffs' request for a stay of these proceedings. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Brian M. Simkin by s/Franklin E. White, Jr. 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 March 10, 2005 Attorneys for Defendant

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Certificate of Filing I hereby certify that on March 10, 2005, a copy of the foregoing Defendant's Response To Plaintiffs' Motion For Stay 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. the Court's system. Parties may access this filing through

s/Timothy P. McIlmail