Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:08-cv-00213-RHH

Document 8

Filed 07/31/2008

Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE CENTRE ON 441, LLP, a Florida Limited Partnership, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

No. 08-213C (Judge Hodges)

THE UNITED STATES, Defendant.

JOINT PRELIMINARY STATUS REPORT Pursuant to Rule 16 and Appendix A of the Rules of the United States Court of Federal Claims ("RCFC"), the parties respectfully submit the following Joint Preliminary Status Report in response to the questions set forth in paragraph 4 of Appendix A. When necessary, Plaintiff, The Centre On 441, LLP, and Defendant, The United States, will present separate views in response to these questions. Neither the Plaintiff nor the Defendant agree or stipulate to the other party's response to those questions where separate views are presented. a. Jurisdiction

For the Plaintiff: Plaintiff avers that the Court has jurisdiction to hear and to decide the action. For the Defendant: Defendant states that it appears at this time that the Court does not have jurisdiction with respect to Count I of plaintiff's complaint, ¶¶ 23-30, which constitutes a request for injunctive relief. Defendant states that it appears at this time that the Court does have jurisdiction with respect to the remaining counts of the complaint.

Case 1:08-cv-00213-RHH

Document 8

Filed 07/31/2008

Page 2 of 6

b.

Consolidation

The parties agree that, at this time, this case should not be consolidated with any other case. c. Bifurcation

The parties, at this time, do not believe that bifurcation is appropriate in this case. d. Deferral

The parties agree, at this time, that this case should not be deferred pending resolution of another case before this Court. e. Remand/Suspension

Neither party, at this time, seeks remand or suspension of this case. f. Joinder

Neither party, at this time, intends to join additional parties. g. Dispositive Motions

For the Plaintiff: At this time, no RCFC 12(b) or RCFC 12(c) motions are contemplated by Plaintiff. Plaintiff intends on filing an RCFC 56 motion for Final Summary Judgment or Partial Summary Judgment on various issues. The contemplated schedule for such a motion is approximately forty-five (45) days after completion of discovery pursuant to the parties' Discovery Plan. For the Defendant: At this time, Defendant does not contemplate filing a dispositive motion except for a motion to dismiss the first count of the complaint for lack of jurisdiction. h. Relevant Factual And Legal Issues

Based upon a preliminary review of the case, the parties submit the below separate views

2

Case 1:08-cv-00213-RHH

Document 8

Filed 07/31/2008

Page 3 of 6

as to the relevant issues: For the Plaintiff: The relevant factual and legal issues include, but are not necessarily limited to: a) whether the Defendant breached the Facilities Department Lease ("Lease") with Plaintiff; b) whether Plaintiff is entitled to injunctive relief preventing any further alleged breach of the Lease; c) any monetary damages suffered by Plaintiff due to the alleged breach of the Lease; and, d) whether the Lease or any options under the Lease are null and void and of no further force and effect due to the alleged breach of the Lease. For the Defendant: The relevant legal issues include, but are not necessarily limited to: a) whether the Court has jurisdiction to grant Plaintiff the injunctive relief sought in Count I of the complaint; b) exactly how many parking spaces correlated to the space available for the Postal Service's use, as set forth in Section 1 of the Lease; c) whether the Postal Service exceeded its allocated space under the lease for parking and maneuvering; d) if the Postal Service did exceed its allocated space for parking and maneuvering, whether this practice was in existence for several years prior to Plaintiff's acquisition of the subject property and whether any objection to it had been waived by the previous lessor; and, e) if the Postal Service did exceed its allocated space for parking and maneuvering, and any objection to it had not been waived by the previous lessor, whether the proper remedy is that sought by plaintiff, i.e., forfeiture of the lease by the Postal Service and assessment of $589,600 in damages, or a different remedy. i. Settlement; Alternative Dispute Resolution

At this time, the parties do not contemplate entering into settlement negotiations in the near future, but will revisit this issue after discovery. At this time, the parties do not contemplate the use of alternative dispute resolution, but may revisit this issue later.

3

Case 1:08-cv-00213-RHH

Document 8

Filed 07/31/2008

Page 4 of 6

j.

Trial

The parties anticipate proceeding to trial in the event this case can not be resolved by a dispositive motion. At this time, neither party requests an expedited trial schedule. The parties propose the following schedule for discovery, which shall be conducted in accordance with RCFC 26 through 37. The parties propose that fact discovery continue until December 31, 2008. The parties propose that expert witnesses be designated by October 17, 2008 and that expert witness reports be produced by October 31, 2008. Further, that the disclosure of rebuttal expert witnesses and reports will be made by November 17, 2008. The parties propose a deadline of February 13, 2009 for the submission of dispositive motions, if any. If no dispositive motions are filed, and a trial is necessary to decide this case, the parties propose that the Court set this case for trial on April 1, 2009, with the pre-trial schedule to be determined in accordance with appendix A of the rules of this Court. For the convenience of the plaintiff and other witnesses, the parties respectfully request that any trial, if necessary, be held in or near West Palm Beach, Florida. k. Electronic Case Management

At this time, the parties do not anticipate any special issues regarding electronic case management needs. l. Additional Information

At this time, the parties believe that there is no additional information of which the Court should be aware at this time.

4

Case 1:08-cv-00213-RHH

Document 8

Filed 07/31/2008

Page 5 of 6

Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director

S/BRIAN M. SIMKIN BRIAN M. SIMKIN Assistant Director

S/KENNETH M. CURTAIN KENNETH M. CURTAIN, Esq. Ruden, McClosky, Smith,. Schuster & Russell, P.A. 222 Lakeview Avenue, Suite 800 West Palm Beach, Fl. 33401 (561) 838-4511 (561) 514-3411 (fax) Attorneys for Plaintiff

S/MICHAEL D. AUSTIN MICHAEL D. AUSTIN Attorney Commercial Litigation Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 616-0321 (202) 305-7644 (fax) Of Counsel MICHAEL F. KIELY United States Postal Service Attorneys for Defendant

July 31, 2008

July 31, 2008

5

Case 1:08-cv-00213-RHH

Document 8

Filed 07/31/2008

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on the 31ST day of July 2008, a copy of the foregoing "JOINT PRELIMINARY STATUS REPORT" 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/Michael D. Austin

6