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

Case 1:92-cv-00872-LAS

Document 349

Filed 09/09/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS AMERICAN SAVINGS BANK, F.A., et al. ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) )

No. 92-872 C (Judge Loren A. Smith)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME AND POSTPONEMENT OF STATUS CONFERENCE Plaintiffs oppose Defendant's motion to postpone the status conference currently scheduled for Friday, September 12, 2008. 1. Background. On July 31, 2008, this Court held a status conference. Plaintiffs recommended that the parties submit a joint status report in which each side would have the opportunity to set forth its recommendation for a trial date and proposal for pre-trial preparations. Defendant opposed that suggestion. Defendant argued that it preferred not to set forth any proposal for a schedule until it learns the details of plaintiffs' warrant forbearance damages claims. See Tr. of July 31, 2008 proceedings at 34-36. During the conference, the Court rejected defendant's argument. The Court ordered the parties to engage in a discussion aimed at establishing a schedule of further proceedings in this case. Tr. of July 31, 2008 proceedings at 37. Further, the Court ordered that the parties submit by September 5, 2008, a joint status report with each party

Case 1:92-cv-00872-LAS

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setting forth a proposed schedule and indicating whether it agreed or disagreed with the other party's proposals. Id. The Court also set a status conference for this upcoming Friday, September 12, 2008, during which the Court indicated it would make decisions on the schedule. Plaintiffs complied with the Court's order, sending the defendant a proposed schedule for pretrial proceedings, along with a description of the damages claims that plaintiffs plan to present at trial. See Dkt. 347-2. Defendant has not complied with the Court's order. Instead of presenting plaintiffs with a counter-proposal, defendant has filed a motion to postpone the status conference, asking this Court to delay setting a schedule until defendant can review a more precise statement of plaintiffs' damages claims--the very position it took in July, and the very position the Court rejected. 2. The Court Should Proceed with the Conference on September 12. Defendant has offered no legitimate reason the Court should not hold the conference on September 12. This case is sixteen years old. Defendant's motion is one in a very long line of requests for adjournments and delays interposed over the many years of this case and indeed over the many years of all the Winstar-related cases. Defendant claims to be "anxious" to see this case resolved. Id. at 4. The Court should hold defendant to its word and press ahead with the conference. 3. The Court Should Set a March Trial Date. The Court ordered the parties to advise it by September 5 of their views on a trial date. On September 5, defendant 2

Case 1:92-cv-00872-LAS

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elected not to submit a proposal for a trial date. To be sure, defendant's motion concedes that defendant could be ready for trial a year from now. But the Court should adopt the March trial date proposed by plaintiffs. Such a date is appropriate given the long history of this case, defendant's intimate familiarity with the available damages theories in the Winstar-related cases, and defendant's conscious and deliberate decision not to submit any pre-trial plan. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court hold the conference as scheduled, this Friday, September 12, 2008, and set this case down for trial in March 2009.

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Case 1:92-cv-00872-LAS

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Respectfully submitted,

/s/ Melvin C. Garbow Melvin C. Garbow ARNOLD & PORTER, LLP 555 Twelfth Street, NW Washington, DC 20004 202-942-5000 (tel) 202-942-5999 (fax) Kent A. Yalowitz ARNOLD & PORTER, LLP 399 Park Avenue New York, NY 10022 212-715-1000 (tel) 212-715-1399 (fax) Of Counsel: Howard N. Cayne David B. Bergman Michael A. Johnson Joshua P. Wilson Alexea R. Juliano ARNOLD & PORTER, LLP 555 Twelfth Street, NW Washington, DC 20004 202-942-5000 (tel) 202-942-5999(fax)

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Case 1:92-cv-00872-LAS

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CERTIFICATE OF SERVICE

I certify that on this 9th day of September 2008, I caused the foregoing PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME AND POSTPONEMENT OF STATUS CONFERENCE 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: September 9, 2008

/s/ Joshua P. Wilson Joshua P. Wilson