Free Motion for Status Conference - District Court of Federal Claims - federal

Case 1:01-cv-00316-FMA

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Filed 09/09/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) SWARTZ ASSOCIATES, INC.,

No. 01-316C (Judge Allegra)

JOINT STATUS REPORT ISSUED PURSUANT TO THE COURT'S JUNE 6, 2005 ORDER In accordance with the Court's June 6, 2005 Order, plaintiff, Swartz Associates, Inc., ("Swartz") and defendant, the United States, hereby inform the Court of the status of the resolution of Swartz's contract claims and settlement discussions and submit a proposed schedule for further proceedings in this case. Swartz's contract claims have been submitted to the United States Marshal Service ("Marshal Service") and have been denied. Nonetheless, counsel for Swartz and the Marshal Service have discussed the possibility of the settlement of the entirety of Swartz's claims against the Government (i.e., both the contract and bid protest claims), and such discussions are ongoing. Should the current negotiations fail to provide a settlement of this case, the parties have agreed to the following schedule for further proceedings in this case: I. The Bid Protest Claims a. The parties respectfully request that, at the court's convenience, but no earlier than 20 days from the date of this filing, the stay be lifted with respect to the remaining claims set forth in Swartz's amended complaint (i.e., the bid protest

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claims), and the court issue an opinion with respect to defendant's pending motion to dismiss. b. Assuming the court denies defendant's motion, within 30 days of the court's issuance of its opinion denying the defendant's motion, the defendant shall file an answer to the amended complaint. At the same time the defendant shall file the administrative record pursuant to Appendix C of the Rules of the Court of Federal Claims ("RCFC"). c. Within 45 days of the defendant's filing of the administrative record, the Government may move for judgment upon the record, pursuant to Rule 56.1 of the RCFC. d. Thirty days following the completion of briefing of any motion for judgment upon the record, or at any other time acceptable to the Court, oral argument shall be heard with respect to any such motion. II. The Contract Claims a. Within 30 days from the date of this joint status report, Swartz shall file a complaint with respect to the contractual claims that were presented to, and rejected by, the contracting officer of the Marshal Service ("the contractual claims action"). The parties respectfully request that the Court stay the contractual claims action pending the Court's resolution of the bid protest claims because the Government contends that the resolution of the bid protest claims in Swartz's favor may render the contractual claims action moot.

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b.

Assuming that the Court does not hold in Swartz's favor with respect to its bid protest claims, the parties respectfully request that, at the earliest date convenient to the Court following the denial of Swartz's bid protest claims, the Court lift the stay with respect to the contract claims action.

c.

Within 30 days of the lifting of the stay with respect to the contractual claims action, the defendant shall file its response to the contractual claims complaint.

d.

Assuming that the defendant does not move to dismiss the contractual claims action but rather answers Swartz's contractual claims complaint,1 within 30 days of the date of the filing of defendant's answer to the contractual claims complaint, the parties shall serve requests for production of documents and shall be free at their own option to serve interrogatories, which shall be answered within 60 days of service.2

e.

Within 90 days of the date of the filing of defendant's answer to the contractual claims complaint, the responses to the requests for production of documents shall be served.

f.

Within 120 days of the date of the filing of defendant's answer to the contractual claims complaint, the parties shall identify individuals or organizations that they will depose.

Should the defendant file a motion to dismiss, the parties request that further discovery be stayed pending the Court's resolution of that motion. The parties have begun discussion concerning a stipulation with respect to discovery conventions in the contractual claims action. -32

1

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g.

Within 240 days of the date of the filing of defendant's answer to the contractual claims complaint, the parties shall have completed all fact depositions, and all interrogatories shall have been served.

h.

Within 270 days of the date of the filing of defendant's answer to the contractual claims complaint, requests to admit shall be served and plaintiff shall disclose the identity of expert witnesses, if any, that it may call to testify at trial.

I.

Within 300 days of the date of the filing of defendant's answer to the contractual claims complaint, plaintiff shall produce its final written reports of experts who have been identified as expert witnesses.

j.

Within 60 days of the filing of plaintiff's expert reports, the depositions of plaintiff's expert witnesses shall be completed.

k.

Within 30 days of the filing of plaintiff's expert reports, defendant shall identify its experts, if any, that it may call to testify at trial.

l.

Within 60 days of the date of the identification of defendant's expert reports, defendant shall produce its final written reports of experts who have been identified as expert witnesses.

m.

Within 60 days of the filing of defendant's expert reports, the depositions of defendant's expert witnesses shall be completed.

n.

Within 60 days of the completion of the depositions of expert witnesses, supplemental expert reports addressing any issues raised in the reports of the opposing parties' experts shall be exchanged.

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o.

Within 30 days of the exchange of supplemental expert reports, depositions with respect to supplemental expert reports shall be completed.

p.

The parties shall file with the Court their final exhibit lists, final witness lists, and memoranda of contentions of law and fact 60 days after the completion of expert discovery, or the Court's resolution of any motions for summary judgment, whichever is later, or, in the event there are no experts, 360 days after the filing of the United States' answers to plaintiff's complaints.

q.

Trial shall commence 30 days after the filing of the materials identified in paragraph (p) above, or on such subsequent date as is convenient for the Court.

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r.

Nothing in the order will prohibit either party from filing a motion for summary judgment at any time. Respectfully submitted,

/s/ Gregg Sodini GREGG SODINI, ESQ. Sodini & Spina 510 Thornall Street Suite 180 Edison, New Jersey 08837 Tel: (732) 603-8808 Attorneys for plaintiff

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director /s/ James M. Kinsella JAMES M. KINSELLA Deputy Director /s/ John Roberson JOHN H. ROBERSON Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 353-7972 Attorneys for Defendant

Dated: September 9, 2005

Of Counsel: JONI GIBSON Associate General Counsel United States Marshals Service 600 Army-Navy Drive Suite 1250 Arlington, VA 22202 Tel: (202) 307-9054

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of September 2005, I caused to be placed in the United States mail (first class, postage prepaid) and to be served by facsimile, a copy of "Joint Status Report Issued Pursuant To The Court's June 6, 2005 Order" addressed as follows: Greg Sodini, Esq. Sodini & Spina 510 Thornall Street Suite 180 Edison, New Jersey 08837 Facsimile (732) 603-0441 I also hereby certify that on this 9th day of September 2005, a copy of the foregoing "Joint Status Report Issued Pursuant To The Court's June 6, 2005 Order," 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 Roberson John H. Roberson

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