Free Motion to Consolidate Cases - District Court of Federal Claims - federal

Case 1:08-cv-00324-CCM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS TERRY and DIANE WINDER, et al., ) ) Plaintiffs, ) ) vs. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________)

No. 08-324 L Judge Christine O.C. Miller

JOINT MOTION TO CONSOLIDATE RELATED ACTIONS AND JOINT STATUS REPORT Pursuant to the Court's June 11, 2008 Order, the parties respectfully submit this joint motion to consolidate actions related to this case and joint status report. As grounds for the motion and for proceeding in the manner proposed, the parties provide the following: 1. On May 1, 2008, Plaintiffs filed their Complaint in this Court. See Pls.'s Compl.,

filed May 1, 2008 (Doc. 1). The allegations in Plaintiffs' Complaint are premised on the conversion of a railroad corridor in Jasper County, Missouri to a recreational trail. See id. ¶ 1, at 2-3. Plaintiffs state that they are "seeking monetary compensation from the United States of America for the 5th Amendment taking of [their] reversionary interest and the added encumbrance of the trail." Id. ¶ 1, at 3. 2. At the time Plaintiffs filed their Complaint, Plaintiffs' counsel advised the United

States' counsel that he intended to file at least one more case based on the same set of operative facts, i.e., on behalf of plaintiffs who allege to have had a property interest taken along this same trail as a result of the Surface Transportation Board's issuance of a Notice of Interim Trail Use ("NITU") on June 21, 2002. See Notice of Indirectly Related Cases ¶ 3, at 2, filed May 1, 2008 (Doc. 5). Accordingly, on June 11, 2008, the United States filed an unopposed motion requesting

Case 1:08-cv-00324-CCM

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the Court stay all proceedings in this case until July 3, 2008, so that Plaintiffs' counsel could file, and the United States could review, potentially related actions that should be consolidated with this case. See United States' Unopposed Motion for Stay of Proceedings, filed June 11, 2008 (Doc. 8)("US' Mot. to Stay"). 3. In the unopposed motion to stay proceedings that the United States filed on June 11,

2008, the United States requested that, if, after review of all the complaints Plaintiffs' counsel filed, the United States and Plaintiffs agreed that it would be appropriate to consolidate those cases with the present action, the parties be permitted to move the Court to consolidate the related actions. See US' Mot. to Stay ¶ 6, at 3. The United States also requested that, if the parties moved the Court for consolidation, and the Court granted the motion, the United States be permitted sixty days from the date of the Court's order granting the motion in which to Answer or otherwise respond to Plaintiffs' complaints. See id. 4. The Court granted the motion to stay on June 11, 2008. See Order, filed June 11,

2008 (Doc. 9). In its order granting the United States' motion, the Court stayed the case until July 3, 2008, and directed the parties to submit a joint status report on or before that date, "stating with particularity whether plaintiffs intend to file other related complaints and whether this case should be consolidated with any new or previously filed actions." Id. ¶ 2, at 1. 5. Subsequent to the Court entering the stay on June 11, 2008, Plaintiffs counsel has

filed three additional complaints on behalf of plaintiffs who allege to have had a property interest taken along this same trail as a result of the Surface Transportation Board's issuance of a NITU on June 21, 2002. See Beecham v. United States, No. 08-435 L (Fed. Cl.)(filed June 16, 2008); Shira v. United States, No. 08-453 L (Fed. Cl.)(filed June 19, 2008); Jones v. United States, No. 08-457

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L (Fed. Cl.)(filed June 20, 2008). The parties request that the Court enter an order consolidating these actions with this case.1/ 6. Consistent with the United States' June 11, 2008 motion and the Court's June 11,

2008 Order, the parties request that the stay in this case be lifted, and that the United States be permitted sixty days from the date of the Court's order resolving this motion in which to Answer or otherwise respond to Plaintiffs' complaints. 7. Counsel for both parties prepared this joint motion and joint status report. Plaintiffs'

counsel has authorized the United States' counsel to file this joint motion and joint status report on behalf of both parties. WHEREFORE, the parties respectfully request that their joint motion be granted and that they be permitted to proceed in the manner proposed herein.

On the same day that Plaintiffs' counsel filed the Complaint in Beecham, Plaintiffs filed a motion in this case to consolidate Winder with Beecham. See Pls.' Mot. to Consolidate and Memo. in Support, filed June 14, 2008 (Doc. 10). Because the United States had not yet been served with the Complaint in Beecham, the United States did not join in the motion to consolidate nor concur to the consolidation at that time. On June 18, 2008, the Court entered an order consolidating Beecham with this case. See Order, filed June 18, 2008 (Doc. 11). -3-

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Respectfully submitted this 2nd day of July, 2008. RONALD J. TENPAS Assistant Attorney General United States Department of Justice Environment & Natural Resources Division By: s/ Mark S. Barron MARK S. BARRON, Trial Attorney United States Department of Justice Environment & Natural Resources Division Natural Resources Section Ben Franklin Station, P.O. Box 663 Washington, D.C. 20044 Tel. (202) 305-0490/ Fax (202) 305-0506 [email protected] Attorneys for the United States

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