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

Case 1:95-cv-00524-GWM

Document 426-3

Filed 11/08/2007

Page 1 of 3

Exhibit 2

I Ill

Case 1:95-cv-00524-GWM

Document 426-3

Filed 11/08/2007

Page 2 of 3

O. BRUTON SMITH and BILL SMITH, and

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* , FEDERAL DEPOSIT INSURANCE * CORPORAT|ON, as Successor to the Rights of * North Carolina Federa~ Savings and Loan * * Association, , * Plaintiffs,
* V. * *

No. 92-540 C Filed:
".::!-~ ---

THE UNITED STATES, Defendant.

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ORDER

Both private plaintiffs and plaintiff FDIC have filed motions to strike the declaration of R.A. Southerland and references to it fiom defendant's motion for summary judgment and motion to dismiss. Alternatively, the plaintift?; request that discovery be reopened solely relating to Mr. Southerland and to permit the plaintiffs to supplement their responses to defendant's motion. The court denies the motions to strike, as well as the alternative motions to reopen discovery regarding Mr. Southerland. Critical to the cou~-t's decision is the following: it is obvious that Mr. Southeriand, as the President of Caroiina Federai, one of the merging institutions, was conceivably a person with relevant information; defendant's.responses to the discovery requests of both plaintiff FDIC and the private plaintiffs complied with the rules: plaintiff FDIC obviously recognized the possible importance of Mr. Southerland because it noticed him for deposition; and, plaintiffFDIC ultimately decided, [br whatever reason o~" reasons, not to depose him. Plaintiffs cannot now reopen the discovery period to conduct the depositions that could have been, and conceivably should have been, taken. In short, defendant complied with discovery procedures and plaintiffs knew that Mr. Southerland possessed potentially relevant information. For their own reasons they neglected to

Case 1:95-cv-00524-GWM

Document 426-3

Filed 11/08/2007

Page 3 of 3

depose him. There has hence been no violation of the discovery rules and no grounds for the remedies sought by plaintiffs. Accordingly, the motions to strike, and alternative motions to reopen discovery, are denied.

A. SMITH SENIOR JUDGE