Free Proposed Pretrial Order - District Court of Federal Claims - federal

Case 1:95-cv-00829-TCW

Document 208

Filed 09/25/2006

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS STERLING SAVINGS ASSOCIATION, a state chartered savings association, STERLING FINANCIAL CORPORATION, a Washington corporation, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 95-829C (Judge Wheeler)

DEFENDANT'S PROPOSED PRE-TRIAL SCHEDULE Pursuant to order of the Court issued at the status conference held on September 14, 2006, and the Court's order dated September 22, 2005, defendant, the United States, respectfully submits the following proposal for pre-trial proceedings in this case, including a date for commencement of trial. Consistent with the Court's September 22, 2005 order, the schedule reflects that plaintiffs' recent motion for reconsideration was denied, and commences with issuance of revised expert reports. In addition, pursuant to the Court's direction at the status conference, the proposed schedule assumes that the Court will not be available for trial until midJune in 2007. In proposing a schedule, we have assumed that the trial will require four weeks. The length of the trial would be diminished, however, if the Court eliminates many (or all) of plaintiffs' ten claims for damages upon summary judgment or if plaintiffs voluntarily dismiss claims that have already been rejected as a matter of law by the United States Court of Appeals for the Federal Circuit. For instance, in a 2003 joint status report, plaintiffs have already identified their reliance and restitution claims as "fallback" theories, consistent with Glendale

Case 1:95-cv-00829-TCW

Document 208

Filed 09/25/2006

Page 2 of 5

Federal Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001), in which identical theories were rejected by the Federal Circuit as a matter of law. Joint Status Report, dated July 21, 2003, at 3. In the joint status report, plaintiffs referred to this case as a "lost profits case," and suggested bifurcation of the "fallback" theories but, based upon their admission that the Glendale decision governs, the theories should be withdrawn or dismissed. Id. Further, assuming that plaintiffs will prepare new expert reports consistent with the Court's recent holding that the Government did not breach any contract with respect to the Central Evergreen transaction, we respectfully request that the Court preclude plaintiffs from increasing damages by adding new theories or bases for award. Plaintiffs have had ample opportunity over the last five years to identify any and all grounds for damages, and any attempt to add new theories or bases at this time would be inappropriate and should be precluded.

[proposed schedules follow]

2

Case 1:95-cv-00829-TCW

Document 208

Filed 09/25/2006

Page 3 of 5

Defendant's Proposed Pre-Trial Schedule Event Plaintiffs' Revised Expert Reports Defendant's deposition(s) of Plaintiffs' Expert(s) and issuance of responsive reports Defendant's Revised Motion for Summary Judgment Upon Damages Plaintiffs' Response to Defendant's Motion for Summary Judgment Upon Damages Defendant's Reply Brief In Support Of Motion for Summary Judgment Oral Argument Upon Motion For Summary Judgment Upon Damages Meeting of Counsel pursuant to Appendix A of the Rules of the United States Court of Federal Claims ("Appendix A") Plaintiffs' Memorandum of Contentions of Law and Fact, Exhibit List, and Witness List, pursuant to Appendix A Defendant's Memorandum of Contentions of Law and Fact, Exhibit List, and Witness List, pursuant to Appendix A Motions in limine filed Responses to Motions in limine Pre-trial conference pursuant to Appendix A Commencement of four-week trial October 23, 2006 December 21, 2006 January 11, 2007 February 1, 2007 February 22, 2007 March 5, 2007 March 27, 2007 Deadline

April 23, 2007

May 21, 2007

May 29, 2007 June 8, 2007 June 11, 2007 June 25, 2007

3

Case 1:95-cv-00829-TCW

Document 208

Filed 09/25/2006

Page 4 of 5

Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General

DAVID M. COHEN Director JEANNE E. DAVIDSON Deputy Director

s/ William F. Ryan

WILLIAM F. RYAN Assistant Director

s/ Elizabeth M. Hosford

Of counsel: TAREK SAWI DELISA SANCHEZ MELINDA HART

ELIZABETH M. HOSFORD Trial Attorney Commercial Litigation Branch Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Attorneys for Defendant

September 25, 2006

4

Case 1:95-cv-00829-TCW

Document 208

Filed 09/25/2006

Page 5 of 5

CERTIFICATE OF FILING I hereby certify that on September 25, 2006, a copy of foregoing "DEFENDANT'S PROPOSED PRE-TRIAL SCHEDULE," 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. Parties may access this filing through the Court's system.

s/ Elizabeth M. Hosford

1