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

Case 1:95-cv-00468-TCW

Document 169

Filed 02/20/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ASTORIA FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 95-468C (Judge Thomas C. Wheeler)

DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S COMPLIANCE WITH APPENDIX A OF THE RULES OF THE COURT OF FEDERAL CLAIMS AND REQUEST FOR EXPEDITED CONSIDERATION Pursuant to Rules 1, 7(b) of the Rules of the Court of Federal Claims ("RCFC") defendant, the United States, respectfully requests that the Court compel plaintiff, Astoria Federal Savings and Loan Association ("Astoria"), to comply with the requirements of RCFC Appendix A at section VI (16). On February 15, 2007, Astoria filed its exhibit list. It failed, however, to adhere to the requirements of Appendix A concerning the parties' pretrial exhibit lists. Appendix A, at section VI (16) states: "The exhibit list shall separately identify those exhibits which the party expects to offer and those which the party may offer if the need arises." RCFC App. A at § VI (16) (emphasis added). Plaintiff's exhibit list neither identifies those exhibits that it intends to offer at trial nor those that it may offer if the need arises. On February 16, 2007, we contacted plaintiff and informed it of its failure to comply with Appendix A's exhibit-list requirements. We requested that plaintiff amend, in a timely manner, its exhibit list to comply with Appendix A. In response to our request, counsel for plaintiff

Case 1:95-cv-00468-TCW

Document 169

Filed 02/20/2007

Page 2 of 4

informed us that Astoria would not comply with this Court's Appendix A exhibit-list requirements. Plaintiff stated that it did not believe that those requirements were applicable to its exhibit list in this case, suggesting that the Court's Pretrial Order of September 19, 2006, did not require compliance with the exhibit-list requirements of Appendix A. Plaintiff is incorrect. There is nothing in the Court's Pretrial Order of September 19, 2006, indicating that this Court intended to permit the parties to ignore the exhibit-list requirements set forth in Appendix A. Indeed, the Court's only pronouncement with regard to the exhibit list is that a "list of exhibits counsel expects to offer into evidence at trial," should be filed by plaintiff on February 15, 2007, and by defendant on March 15, 2007. Pretrial Order (Sept. 19, 2006) at ¶¶ 3(d), 4(d). We respectfully request that the Court compel plaintiff to comply with Appendix A at section VI (16) by amending its exhibit list to identify "those exhibits which [plaintiff] expects to offer and those which the party may offer if the need arises." RCFC App. A at § VI (16). Given the short time before the date our own exhibit list is due to be filed and the little remaining time before trial, we respectfully request expedited treatment of this motion. Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General JEANNE E. DAVIDSON Acting Director /s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director

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Case 1:95-cv-00468-TCW

Document 169

Filed 02/20/2007

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

OF COUNSEL: ARLENE PIANKO GRONER ELIZABETH M. HOSFORD BRIAN A. MIZOGUCHI JOHN J. TODOR SAMEER YERAWADEKAR

February 20, 2007

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Case 1:95-cv-00468-TCW

Document 169

Filed 02/20/2007

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CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of February 2007, a copy of the foregoing "DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S COMPLIANCE WITH APPENDIX A OF THE RULES OF THE COURT OF FEDERAL CLAIMS AND REQUEST FOR EXPEDITED CONSIDERATION " 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

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