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

Case 1:95-cv-00650-LSM

Document 115

Filed 01/24/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ALFRED ALOISI, et al., Plaintiffs v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 95-650L Hon. Lawrence S. Margolis

REPLY IN SUPPORT OF MOTIONS TO COMPEL THE APPEARANCE OF PLAINTIFFS JAMES KENDLE, ENERGEL AND DYNATECH AT DEPOSITION Defendant submits this Reply in support of both, its Motion to Compel the Appearance of Plaintiffs Energel, Inc. and Dynatech Corporation at Deposition, filed November 30, 2007 (Dkt. No. 105), and its Motion to Compel the Appearance of Plaintiff James Kendle at Deposition, filed December 12, 2007 (Dkt. No. 107), and in reply to Plaintiffs' Response to Defendant's Motions to Compel filed January 11, 2007 (Dkt. No. 114). Despite the excuses provided by Plaintiffs in their Response to Defendant's Motions to Compel, no where do they argue that the motions should be denied. In light of the fact that these Plaintiffs came forward only after they were confronted with a motion to compel, Defendant's motions should be granted. Defendant, therefore, requests that the Court grant the United States' motions to compel and order Plaintiffs to appear at deposition. Should these plaintiffs fail to appear or, with respect to the 30(b)(6) depositions of Energel, Inc. and Dynatech Corporation, appear without being prepared to address the subject matter identified in the notice of deposition, the Court may then take prompt and appropriate action under Rule 37(b) of the Rules of the United States Court of Federal Claims.1/

1/

Plaintiff Goodman's declining health was never brought to Defendant's attention. See Affidavit of Myron Finkelstein (Dkt. No. 114-2), ¶¶ 5, 8; see also Oct. 31, 2007 Aloisi Tr. at 5:10-21 (attached hereto as Ex. 1) (indicating the Mr. Goodman's health declined over an extended period of time). Had Defendant been apprised of Mr. Goodman's declining condition,

Case 1:95-cv-00650-LSM

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Finally, because Plaintiffs decided to come forward just a few weeks before dispositive motions are due on February 1, 2008, Defendant should be permitted to supplement its motions papers with information obtained from the depositions, if Defendant deems it warranted. Counsel for Plaintiffs has agreed that Defendant may supplement its motion papers (see Ex. 2, hereto). Defendant, therefore, respectfully requests that, when granting its motions to compel, the Court also grants Defendant leave to supplement its motion papers with information obtained from the anticipated depositions as Defendant may deem necessary. // // // // // // // // // // // // // //

Defendant could have sought leave during the stay to depose Mr. Goodman to preserve his testimony. To cure any prejudice to the United States resulting from Plaintiffs' failure to timely apprise Defendant of Mr. Goodman's condition, Defendant may seek an adverse inference where appropriate. -2-

Case 1:95-cv-00650-LSM

Document 115

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Dated: January 24, 2008

Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division

s/ Bruce K. Trauben BRUCE K. TRAUBEN Natural Resources Section Environment and Natural Resources Division U. S. Department of Justice P. O. Box 663 Washington, D.C. 20044-0663 (202) 305-0238 (ph) (202) 305-0267 (fax) WILLIAM SHAPIRO Natural Resources Section Environment and Natural Resources Div. U.S. Department of Justice 501 I Street, Suite 9-700 Sacramento, CA 95814-2322 (916) 930-2207 Attorneys for Defendant

Of Counsel: Rose Miksovsky, Esq. Office of General Counsel U.S. Department of Agriculture 33 New Montgomery St., 17th Fl. San Francisco, CA 94105-3170

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Case 1:95-cv-00650-LSM

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EXHIBIT 1

Case 1:95-cv-00650-LSM
Alfred Aloisi

Document 115-2

Filed 01/24/2008

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October 31, 2007

Alfred Aloisi v. United States of America

Page 1

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
ALFRED

7

ALOISI,

et al.,
) )

8

Plaintiffs,
9

),

vs.
10
UNITED STATES OF AMERICA,

No. 95-650L

11

Defendants.
12 13 14 15

DEPOSITION OF ALFRED ALOISI
16 17 18 19 20 21 22 23 24 25

Wednesday, October 31, 2007
9:20 a.m.

Reported By:

CRAI G W. WOOD, RPR, C S R No.9 7 8 9

CRAIG WOOD REPORTING
Redding, California --- (530) 244-0789

Case 1:95-cv-00650-LSM
Alfred Aloisi

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October 31, 2007

Alfred Aloisi v. United States of America

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APPEARANCES
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6

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For the Plaintiffs: FOLEY & LARDNER washington Harbour 3000 K Street, N.W., Suite 500 Washington, DC 20007-5101 (202) 295-4017

BY: LAWRENCE G. McBRIDE
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10

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12 13 14

For the Defendant: DEPARTMENT OF JUSTICE Environmental & Natural Resources Division 601 D Street, N.W. Washington, DC 20004 (202) 305-0238

BY: BRUCE K. Trauben

Also Present:
15 16 17 18 19 20 21 22 23 24 25

Thomas Ferrero Hilton Cass

- - - 000 - - -

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CRAIG WOOD REPORTING
Redding, California --- (530) 244-0789

Case 1:95-cv-00650-LSM
Alfred Aloisi

Document 115-2

Filed 01/24/2008

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October 31, 2007

Alfred Aloisi v. United States of America

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1 2

INDEX
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EXAMINATION BY:
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Page
4

Mr. Trauben
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I

7
8 9
I

10 11 12 13 14

EXHIBITS
FOR THE DEFENDANT'S:
1
2
3

15 16 17 18 19 20

Qui tclaim Deed Tax Assessor Cards
Document

29 47

4

Letter

129 131

- - - 000 - -21 22 23 24 25
,. '-- ,. -- .~:_- '--", '... . - ."

CRAIG WOOD REPORTING
Redding, California m (530) 244-0789

Case 1:95-cv-00650-LSM
Alfred Aloisi

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October 31, 2007

Alfred Aloisi v. United States of America

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1 2
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BE IT REMEMBERED that on Wednesday, October 31, 2007, commencing at the hour of 9:20 a.m., of said day,
at the offices of Klamath National Forest, 1312 Fairlane
Road, Yreka, California, before me, Craig W. Wood, a

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5 6

Certified Shorthand Reporter in and for the State of California, there personally appeared
ALFRED L. ALOISI,

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who, being first duly sworn by me to tell the truth, was
examined and testified as follows:

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- - - 000 - -I

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BY MR.
TRAUB EN:

EXAMINATION

I

14 15

Q.

will

you
L.

please state your

name

for the record.
i

A.
Q.

Alfred

Aloisi.

16 17
18

And you go by Fred?

A.
Q.

Yes, I do. As you know,

my name

is

Bruce Trauben.

I

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represent the Uni ted States, the defendant in this

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action.
A.
Q.

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22 23

Yes, Bruce, I've made your acquaintance.
I'll have some questions for you today.

And

just as an overview of what we're going to do today, I 1m

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going to ask you some general questions about the - - who
the plaintiffs are and the status of the plaintiffs.
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CRAIG WOOD REPORTING
Redding, California m (530) 244-0789

Case 1:95-cv-00650-LSM
Alfred Aloisi

Document 115-2

Filed 01/24/2008

Page 6 of 8
October 31, 2007

Alfred Aloisi v. United States of America

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3

We'll go into the property interest of the plaintiffs.
The knowledge of the owl.

We'll talk about the various
So just to give

components that go into a takings case.

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5 6 7
8

you an overview of what we'll be discussing.

A.
Q.

Thank you.
And, also, we'll get into your prior
follow-up questions and some

9

deposition. I have some discovery responses. A. Very well.
Q.
at torney, Mr. McBride,

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I understand from discussions wi th your
that Mr. Goodman has passed away.

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12 13

A.
Q.

Yes,

he has.
four years ago.

And do you know when?

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16

A.

Approximately three,

And I' m

not certain of the exact date.
Q.

When did you learn of his passing?
I would say three years ago.

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A.
Q.

Do you know, was it sudden, hi s death?
No.
It was - - I believe his heal th

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A.

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deteriorated over a considerable period of time.

Don

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was diabetic and he had other problems, as well.
Q.

Do you know whether his estate is still in

probate?
A.
Q.

I do not know.

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Do you know who is representing his estate?

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CRAIG WOOD REPORTING
Redding, California m (530) 244-0789

Case 1:95-cv-00650-LSM

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Filed 01/24/2008

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EXHIBIT 2

Case 1:95-cv-00650-LSM

Document 115-2

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u.s. Departent of Justice
Environment and Natual Resources Division
bkt 90-1-23-3261
Natral Resources Section

Telephone (202) 305-0238

P.O. Box 663 Ben Franklin Staûon Washington, DC 20044-0663

Facsimile (202) 305-0267

bruce.traube~sdoj.gov

Januar 15,2008

VIA FACSIMILE (202) 672-5399 Lawrence G. McBnde, Esq. Foley & Lardner LLP
Washigton Harbour

3000 K Street, N.W., Suite 500
Washigton, D.C. 20007-5143

Re:

Aloisi v. United States. CFC No. 95-650L

Dear Mr. McBnde:
. This letter is memorialize our agreement (conveyed though an exchange of voice mail messages on Januar 14-15,2008) that Defendant may depose James Kendle, Donad C.

Plaintiff, Donald W. Goodman) and Myron Finelstein afer Februar 1,2008 (the due date for dispositive motions), and that Defendant may supplement its motion papers (whether its opening bnef, response or reply papers) based upon infonnation obtained from those
Goodman (son of

depositions as Defendant deems necessar.

Plaintiffs' understanding of

Please contact me as soon as possible if the statement above is inconsistent with the agreement with respect to the depositions of Kendle, Goodman
Sincerely,

and Finkelstein, or if you have any qliestions or concern.

Bruce K. Trauben Trial Attorney

cc: Wiliam Shapiro