Free Motion to Dismiss - Rule 41(a) - District Court of Federal Claims - federal

Case 1:07-cv-00815-TCW

Document 14

Filed 06/27/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CALL HENRY INC., Plaintiff, v. THE UNITED STATES, Defendant. JOINT MOTION TO VOLUNTARILY DISMISS, WITHOUT PREJUDICE, COUNTS II THROUGH V OF THE COMPLAINT AND TO WITHDRAW DEFENDANT'S PARTIAL MOTION TO DISMISS The Parties, by and through their undersigned counsel, hereby submit their Joint Motion to Voluntarily Dismiss, Without Prejudice, Counts II through V of the Complaint and to Withdraw Defendant's Partial Motion to Dismiss. In support thereof states as follows: 1. The Plaintiff, Call Henry, Inc., filed its five-count Complaint in this matter Case No. 1:07-cv-00815-TCW

on or about November 21, 2007. In its Complaint, the Plaintiff asserted claims for breach of contract, breach of implied covenant of good faith and fair dealing, breach of implied duty to disclose superior knowledge, constructive change and breach of implied warranty to provide accurate information. 2. On or about March 7, 2008, the Defendant filed its Partial Motion to

Dismiss, asserting that, with the exception of the breach of contract claim, the Plaintiff's claims were otherwise due to be dismissed. 3. The parties have conferred and have reached an agreement to resolve the

issues pending in the Partial Motion to Dismiss. Specifically, the Plaintiff agrees to
94933_1 ALLEN, NORTON & BLUE, P.A.
PROFESSIONAL ASSOCIATION

Case 1:07-cv-00815-TCW

Document 14

Filed 06/27/2008

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voluntarily dismiss Counts II through V without prejudice.

As a consequence, the

Defendant agrees that its pending Partial Motion to Dismiss should be denied as moot. 4. The Court has scheduled a telephonic hearing on the Defendant's Partial

Motion to Dismiss, to be held on July 1, 2008 at 10:00 a.m. The parties request that the Court cancel the scheduled hearing to the extent that the current Motion resolves the issues to be heard at that hearing. 5. The Defendant requests, and the Plaintiff does not oppose, a 21-day period

within which to submit its Answer to Count I of the Plaintiff's Complaint. Wherefore, the Parties jointly request that the foregoing Motion be granted and that the Court (1) permit the Plaintiff to voluntarily dismiss Counts II through V without prejudice; (2) deny the Defendant's Partial Motion to Dismiss as moot; and, (3) grant the Defendant 21 days within which to file its Answer to Count I of the Complaint. Respectfully submitted,

s/ Brian Koji BRIAN KOJI ALLEN, NORTON & BLUE, P.A. Hyde Park Plaza - Suite 225 324 South Hyde Park Avenue Tampa, Florida 33606-4127 (813) 251-1210 (813)253-2006 ­ Fax Counsel for Call Henry, Inc.,

s/ Douglas G. Edelschick DOUGLAS G. EDELSCHICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L. Street, N.W. Washington, DC 20530 (202) 353-9303 Attorneys for Defendant

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ALLEN, NORTON & BLUE, P.A.
PROFESSIONAL ASSOCIATION