Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:95-cv-00524-GWM

Document 373

Filed 05/11/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) )

HOMER J. HOLLAND, THE ESTATE OF HOWARD R. ROSS, AND FIRST BANK,

No. 95-524 C (Judge G. Miller)

Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' MOTION FOR LEAVE TO FILE A SURREPLY TO DEFENDANT'S MOTION FOR LEAVE TO FILE AN AMENDED ANSWER TO PLAINTIFFS' THIRD AMENDED COMPLAINT Plaintiffs respectfully request the Court's leave to submit the following Surreply to clarify a misstatement in Defendant's Reply in support of its motion for leave to amend its answer. In its Reply brief dated May 10, 2007, Defendant asserts in a footnote that "Plaintiffs have not argued that our counterclaims are futile upon the merits, thus conceding that our counterclaims are valid upon the merits." See Def.'s Reply at 10 n.6. That assertion is false. Plaintiffs do not concede that Defendant's counterclaims are "valid upon the merits." To the contrary, Plaintiffs argue throughout their May 3, 2007 Opposition brief that Defendant's proposed counterclaims (1) fail to articulate a cognizable claim for relief, Pl's Opp. at 1-3; (2) are precluded in their substance by the court's prior rulings, id. at 2-3, 7 and (3) lack any factual support in the record. Id. at 7. So that the record is clear, and to correct Defendant's misstatement, Plaintiffs again urge that "the Court [] reject as futile Defendant's proposed amendments to its answer." Pl's Opp. at 3.

Case 1:95-cv-00524-GWM

Document 373

Filed 05/11/2007

Page 2 of 3

Respectfully Submitted, /s/ David B. Bergman David B. Bergman ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 (tel.) (202) 942-5999 (fax) Counsel for plaintiffs Holland and Ross and First Bank.

Of Counsel: Melvin C. Garbow Howard N. Cayne Michael A. Johnson Joshua P. Wilson ARNOLD & PORTER, LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Co-counsel for First Bank: Donald J. Gunn, Jr., Esq. Sharon R. Wice, Esq. Gunn and Gunn First Bank Building Creve Coeur 11901 Olive Blvd., Suite 312 P.O. Box 419002 St. Louis, Missouri 63141 (314) 432-4550 (tel.) (314) 432-4489 (fax) Dated: May 11, 2007

-2-

Case 1:95-cv-00524-GWM

Document 373

Filed 05/11/2007

Page 3 of 3

CERTIFICATE OF SERVICE I certify that on this 11th day of May 2007, I caused the foregoing Plaintiffs' Motion For Leave to File a Surreply to Defendant's Motion For Leave to File An Amended Answer To Plaintiffs' Third Amended Complaint to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system.

Dated: May 11, 2007

/s/ Joshua P. Wilson Joshua P. Wilson

-3-