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

Case 1:95-cv-00790-MCW

Document 99

Filed 12/12/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MOLA DEVELOPMENT CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant.

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No. 95-790C (Judge Williams)

DEFENDANT'S MOTION FOR STATUS CONFERENCE Defendant, the United States, respectfully submits this motion for a status conference. As part of a greater effort to move this and all other remaining Winstar-related cases toward resolution, and because our motion to dismiss and the parties' cross-motions upon liability were fully briefed and argued in 2004, we respectfully request that the Court hold a status conference. Counsel for plaintiff, Paul R. Franke, III, was contacted by telephone and has indicated that plaintiff does not oppose our request for a status conference. We recognize that the Court has recently devoted extensive time and effort to other Winstar-related cases before it. In particular, the Court has expended significant time and effort in the trials of, and in other matters related to, Northeast Savings, F.A. v. United States, No. 92550C (Fed. Cl.), and First Annapolis Bancorp, Inc. v. United States, No. 94-522C (Fed. Cl.). In this case, however, defendant's motion to dismiss and the parties' cross-motions for summary judgment upon liability have been fully briefed and were argued before the Court over two years ago, on September 24, 2004. In addition, defendant moved for leave to file a motion for summary judgment upon damages on October 27, 2005, in an effort to assist the Court in arriving at a ruling. All of these motions remain pending before the Court. We respectfully request that

Case 1:95-cv-00790-MCW

Document 99

Filed 12/12/2006

Page 2 of 4

the Court hold a status conference to assess the best way to bring these matters, and the case as a whole, to a resolution. A status conference may assist the Court in arriving at a resolution of this case by permitting the parties to offer suggestions regarding how to proceed. For our part, we would not be averse to the idea of holding a mini-trial or settlement conference before a settlement judge to the extent that these measures may be helpful in moving towards a resolution of the case. However, in the interests of full disclosure, we believe that the positions plaintiff Mola Development Corporation ("Mola") has taken in this action have very little chance of success given the applicable precedent, so we are unlikely to agree to pay any amount to Mola in settlement. Nevertheless, we would not be averse to the opportunity to demonstrate to Mola that its prospects for success are minimal, and accordingly, we would be willing to participate in a mini-trial or settlement conference before a settlement judge should the Court conclude that either procedure would move the case forward. We also remain willing to commence briefing of damages issues, in the event that the Court resolves the pending liability issues in plaintiff's favor. Counsel for plaintiff has indicated that plaintiff does not agree to these particular suggestions, and may file a response in opposition to them. For the foregoing reasons, we respectfully request that the Court grant our motion for a status conference in this case.

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Case 1:95-cv-00790-MCW

Document 99

Filed 12/12/2006

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Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General DAVID M. COHEN Director /s/ William F. Ryan by Jeanne E. Davidson WILLIAM F. RYAN Assistant Director /s/ Sameer Yerawadekar SAMEER YERAWADEKAR Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-4696 Fax: (202) 307-0972 Attorneys for Defendant

OF COUNSEL: WILLIAM G. KANELLIS Trial Attorney Department of Justice December 12, 2006

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Case 1:95-cv-00790-MCW

Document 99

Filed 12/12/2006

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CERTIFICATE OF FILING I hereby certify that on this 12th day of December 2006, a copy of the foregoing "DEFENDANT'S MOTION FOR A STATUS CONFERENCE" 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/ Sameer Yerawadekar