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

Case 1:95-cv-00524-GWM

Document 368

Filed 04/16/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ HOMER J. HOLLAND, ) HOWARD R. ROSS, and ) FIRST BANK, ) ) Case No. 95-524C Plaintiffs, ) ) (Judge George W. Miller) v. ) ) (Winstar-Related Case) THE UNITED STATES, ) ) Defendant. ) ____________________________________) DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR SUBSTITUTION OF PARTIES AND CROSS-MOTION FOR IDENTIFICATION OF THE EXECUTORS OF MR. ROSS'S ESTATE Defendant, the United States, respectfully submits this response to plaintiffs' motion for substitution of parties, and cross-moves for production of the identity of the executors of Mr. Ross's estate. We do not oppose plaintiffs' request to substitute the Estate of Howard Ross ("the Ross Estate") for Mr. Ross. The substitution of Mr. Ross by the Ross Estate, however, does require that we obtain the identity of the executors of the Ross Estate. We have informed plaintiffs that we intend to seek leave to assert affirmative counterclaims for breaches of a covenant not to sue or, in the alternative, for a set-off. These affirmative counterclaims arise from the Court's November 17, 2006; February 20, 2007; and February 28, 2007 opinions and orders, construing the broad language of the accord and satisfaction provision of the Settlement Agreement, dated August 14, 1991, to be merely a covenant not to sue.

Case 1:95-cv-00524-GWM

Document 368

Filed 04/16/2007

Page 2 of 4

To preserve our ability to recover on this counterclaim from the Ross Estate, 31 U.S.C. § 3713 requires that we provide notice of the Government's claim to a representative of the Ross estate. 31 U.S.C. § 3713 (b) imposes personal liability upon a "representative" of an insolvent debtor or the debtor's estate if the representative pays any debt of the person or estate without first paying the debt owed the United States. See King v. United States, 379 U.S. 329 (1964) (holding liable distributing agent of a debtor who paid other creditors of debtor without first paying United States). In order to be personally liable, the debtor's representative must be provided notice of the Government's claim. See, e.g., United States v. Coppola, 85 F.3d 1015, 1020 (2nd Cir. 1996). Plaintiffs' motion identifies Steven Bangert as the co-Executor of the Ross Estate. Although Mr. Bangert has been provided notice of this counterclaim, we respectfully request the identification of the other executor or executors of the Ross Estate to ensure full compliance with the statute. Respectfully submitted, MICHAEL F. HERTZ Deputy Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

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Case 1:95-cv-00524-GWM

Document 368

Filed 04/16/2007

Page 3 of 4

Of Counsel: RICHARD B. EVANS ELIZABETH A. HOLT WILLIAM G. KANELLIS DAVID A. LEVITT JOHN J. TODOR April 16, 2007

/s/ John H. Roberson JOHN H. ROBERSON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street Washington, D.C. 20530 Tele: (202) 353-7972 Fax: (202) 514-8640 Attorneys for Defendant

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Case 1:95-cv-00524-GWM

Document 368

Filed 04/16/2007

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 16th day of April 2007, a copy of "DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR SUBSTITUTION OF PARTIES AND CROSSMOTION FOR IDENTIFICATION OF THE EXECUTORS OF MR. ROSS'S ESTATE" 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/ John H. Roberson John H. Roberson