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

Case 1:92-cv-00265-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS REPUBLIC SAVINGS BANK, FSB, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) )

No. 92-265C (Senior Judge Loren Smith)

DEFENDANT'S MOTION FOR DECISION OR TRANSFER Pursuant to Rules 7(b) and 40.1 of the Rules of the Court of Federal Claims ("RCFC" or "Rules"), and the Omnibus Case Management Order ("CMO") dated September 18, 1996, defendant, the United States, respectfully seeks a ruling on the pending cross-motions for summary judgment, fully briefed and pending for decision since March 2004, or, in the alternative, transfer of this 14-year-old case for decision by another judge.1 We recognize that the Court has recently devoted extensive time and effort to other Winstar-related cases before it. In particular, the Court has expended significant time and effort in the matters related to Suess v. United States, No. 90-981C (Fed. Cl.), and American Savings Bank v. United States, No. 92-872C (Fed. Cl.). In this case, however, the parties' cross-motions for summary judgment upon damages have been fully briefed and were argued before the Court nearly three years ago. Only approximately 25 Winstar-related cases remain pending, and it is in everyone's interest to resolve the remaining matters expeditiously. This action ­ initiated in 1992 ­ is one

On September 1, 2006, in response to a notice of designation for the CM/ECF system, plaintiffs wrote to the Court advising that the case was ripe for decision. On September 22, 2006, we filed a motion for a status conference in which we agreed that the case was ripe for decision and asked for further guidance from the Court. The Court has yet to rule on that motion.

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Case 1:92-cv-00265-LAS

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of only very few "first wave" cases that await an initial decision by this Court. Witnesses are becoming unavailable and their memories are fading.2 Therefore, it is important that the case be resolved promptly, consistent with the many concerted efforts made by the Court to manage the Winstar-related litigation. Plaintiffs, Republic Savings Bank, F.S.B., et al., (hereinafter "plaintiffs") initially filed a motion for partial summary judgment on liability on July 8, 1997. On February 18, 2000, the Court granted plaintiffs' request to amend their liability motion to include a comprehensive summary judgment motion for both liability and damages issues. The Government responded with cross-motions and briefing was completed on June 13, 2000. On September 20, 2000, the Court held oral argument on the pending motions. After the argument, the Court ordered the parties to file supplemental briefing on a damages issue. That briefing was completed on November 21, 2000. On July 24, 2003, after a two and one half year delay, the Court held a status conference where it ordered that the parties re-brief the issues by each submitting one consolidated brief addressing all liability issues and one consolidated brief addressing all damages issues. Oral argument was held on these consolidated motions on January 21, 2004, after which the Court granted summary judgment to plaintiffs as to liability but ordered supplemental briefing upon a damages issue raised at the hearing. This damages briefing was completed on March 19, 2004. As of now, over two years and nine months later, there has been no ruling on the motions for summary judgment as to damages.

For example, Leo Blaber, a principal supervisory agent for the Federal Home Loan Bank of Chicago and a potential witness in this case, passed away a couple of years ago. 2

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Case 1:92-cv-00265-LAS

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This Court, having twice heard oral argument on the pending motions concerning damages, is in the best position to resolve those pending motions and, if necessary, schedule the case for trial. Because Winstar-related issues are now familiar to many other Judges as well, however, another Judge could become familiar with the record. If a ruling is not possible in the near future, given the length of time the case has been pending, we respectfully request that the case be reassigned. As Managing Judge of the Winstar-related litigation, the Court possesses authority to transfer the case under the CMO which provides, in relevant part: "The Managing Judge may assign specific matters or cases to another Judge or Judges of this Court for resolution." ¶ 2.C, CMO. Furthermore, pursuant to RCFC 40.1(b), any case may be transferred "[t]o promote docket efficiency, to conform to the requirements of any case management plan, or for the efficient administration of justice." Here, such transfer would not only promote the efficient administration of justice but also would better conform to the Winstar-related case management plans. Because this is a "first wave" case, it should have been accorded priority in the resolution of the 122 Winstar-related cases. Instead, it is one of only a few Winstar-related cases that has not yet received a final judgment from this Court. In short, this case has now been pending for over 14 years and the dispositive motions have been awaiting decision, after rebriefing and reargument, for nearly three years. In light of these circumstances, we respectfully request a prompt decision on the pending motions and the scheduling of a trial date if necessary or, in the alternative, a reassignment to another Judge.

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CONCLUSION For these reasons, we respectfully request that this Court issue a prompt decision on the pending motions or, in the alternative, that this Court transfer the matter.

Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General DAVID M. COHEN Director s/Jeanne E. Davidson JEANNE E. DAVIDSON Deputy Director s/Timothy J. Abraham TIMOTHY J. ABRAHAM Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Commercial Litigation Branch 1100 L Street, N.W., Room 4046 Washington, D.C. 20005 Tel: (202) 616-0477 Fax: (202) 353-7988 Attorneys for Defendant

Of Counsel: MARK PITTMAN

January 8, 2007

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CERTIFICATE OF FILING I hereby certify that on January 8, 2007, a copy of the foregoing "DEFENDANT'S MOTION FOR DECISION OR TRANSFER" 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/Timothy J. Abraham