Free Motion for Discovery - District Court of Federal Claims - federal

Case 1:07-cv-00271-RHH

Document 37-2

Filed 01/31/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

)

JACK LADD and MARIE LADD, et aI., Plaintiffs,
v.

) ) ) )

No. 07-271 L
Honorable Robert H. Hodges, Jr.

THE UNITED STATES OF AMERICA,
Defendant.

) ) ) )
)

)

DECLARATION OF RACHEL A. DOUGAN IN SUPPORT OF DEFENDANT'S MOTION FOR RELIEF PURSUANT TO RCFC 56(f)

I, Rachel A. Dougan, counsel for Defendant, the United States of America, hereby
declare as follows pursuant to 28 U.S.C. § 1746:

Discovery Sought
1.

Defendant seeks to conduct full historical title searches of the properties allegedly

owned by the named Plaintiffs prior to responding to Plaintiffs' Motion for

Parial Sumar

Judgment ("Plaintiffs' Motion").
2.

In this case, Plaintiffs claim that a railroad right-of-way was established pursuant

to grants of propert interests to the El Paso and Southwestern Railroad and the Arizona and
South Eastern Railroad Company. These grants were allegedly made by deed or pursuant to the

General Railroad Right-of-Way Act of 1875 ("1875 Act"). The railroad right-of-way was
transferred and came to be owned by the San Pedro Railroad Operating Company, LLC

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("SPROC"). Plaintiffs allege that SPROC held an interest in the right-of-way at the time of
issuance of the Decision and Notice of

Interim Trail Use or Abandonment ("NITU") by the

Surface Transportation Board ("STB") on July 25,2006. Defendant seeks to conduct a full
historical title search of

the original acquisition of an interest in the subject right-of-way by the El

Paso and Southwestern Railroad and the Arizona and South Eastern Railroad Company, and to
search the chain of title from these railroads to SPROC.
3.

Defendant seeks to obtain all of the historical documents that would be associated

with the title transactions described in paragraphs 1 and 2 in order to assemble a complete picture

of the circumstances surounding the title issues in this case.
4.

Defendant also seeks to propound contention interrogatories and other discovery

upon Plaintiffs to determine the basis for claims in their First Amended Complaint regarding the

alleged consumation of a trail use agreement between SPROC and the Trust for Public Lands
(the "Trust"). This discovery wil also seek to uncover the factual basis for Plaintiffs'
"permanent" taking claims.
5.

Finally, Defendant seeks to obtain discovery from the Trust and SPROC regarding

the history of negotiations to establish a trail use agreement over a portion ofthe subject right-of-

way, the curent status of negotiations between the Trust and SPROC, and the likelihood of
future negotiations regarding entry into a trail use agreement.

Discovery Wil Aid in Resolution of Genuine Issues of Material Fact
6.

Defendant has two general bases for expecting that the discovery it seeks will

uncover facts that are essential to its opposition to Plaintiffs' motion and will help resolve what
appear to be genuine issues of material fact.
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7.

Defendant's first basis for expecting that discovery wil aid in resolution of a

genuine issue of material fact concerns the fact that Plaintiffs have failed to provide proof that,
on the date of

the alleged taking, they each had an interest in propert that includes or is adjacent
the

to the subject right-of-way. Moreover, Plaintiffs have generally failed to identify which of

original land grants to SPROC's predecessors form the basis for each named Plaintiffs' claim. Because the method by which SPROC's predecessors acquired their interests in the right-of-way

and the specifics of the particular conveyance documents wil determine the extent of the named

Plaintiffs' current propert interests, title research linking the original conveyances for the rightof-way to the propert interests allegedly currently held by the named Plaintiffs is essential to
determining whether each named Plaintiff has a valid claim.
8.

Defendant seeks time to conduct discovery in the form of title searches on the

properties of each named Plaintiff from the date of the alleged taking back to the original
conveyances to SPROC's predecessors for the right-of-way to determine whether the named

Plaintiffs' propert interests derived from a line of deeds or via a homesteading act, and to
determine whether the right-of-way over propert allegedly owned by the named Plaintiffs was
granted to SPROC's predecessors by deed or via the 1875 Act.
9.
of

Defendant's second basis for expecting that discovery may resolve a genuine issue

material fact relates to discrepancies between the information alleged in Plaintiffs' First

Amended Complaint and informal information that Defendant has obtained from counsel for the
Trust and SPROC.
10.

The July 25,2006 NITU set January 22,2007, as the expiration date for

negotiations for reaching a trail use agreement. On Februar 12,2007, pursuant to a request from

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the Trust, which was supported by SPROC, the STB extended the negotiating period for par of
the rail line to February 21,2007.
11.

Plaintiffs' complaint alleges that "sometime after February 2007 a Trail Use

Agreement was reached between the SPROC the Trust for Public Land and this Trail Use
Agreement affects only that portion of

the property that is subject to the NITU and was also
the negotiation period in its February 14th (sic) Order."

subject to the STB's extension of

Plaintiffs' First Amended Complaint (June 27, 2007) at 10, ii 25.
12.

On November 6, 2007, I contacted Tily Shue, counsel for the Trust, to discuss the

negotiations that the Trust may have had regarding entry into a trail use agreement. Ms. Shue
indicated that as of that date no trail use agreement had been reached by SPROC and the Trust.

She further indicated that it was her understanding that SPROC had broken off negotiations with
the Trust and that there were no ongoing negotiations between SPROC and the Trust.
13.
Following the filing of

Plaintiffs' First Amended Complaint in this case, I

contacted John D. Heffner, counsel for SPROC, by phone on July 18,2007, and followed up with an e-mail on the same date. During our phone conversation and in the e-mail, I requested

information on the curent status of negotiations regarding entry into a trail use agreement and
information about SPROC's anticipated future actions with respect to the subject right-of-way.

During our July 18,2007, conversation, counsel for SPROC indicated that he would have to
contact his client and get back to me. After not hearing back from Mr. Heffner, I called Mr.
Heffner again and left a message. On Monday, January 28, 2008, my co-counsel, James Gette,
again called Mr. Heffner, who again responded that he would have to contact his client and get
back to us. On Januar 29,2008, Mr. Heffner left a

message for Mr. Gette that he had finally
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obtained information from his client. On January 30,2008, Mr. Gette called Mr. Heffner and
Mr. Heffner stated that there is no trail use agreement in place and that it was his understanding
that there are no ongoing negotiations between SPROC and the Trust regarding the subject rightof-way.
14.

Based upon this informal information from counsel for the Trust and SPROC, it

appears that, contrary to Plaintiffs' allegations, the negotiating period expired on Februar 21,
2007, without an agreement being reached, and there are no ongoing negotiations.
15.
Given the expiration of

the negotiating period and the informal indication that no

fuher negotiations for a trail use agreement are ongoing, Defendant intends to propound on
Plaintiffs formal discovery, including contention interrogatories, to define Plaintiffs' claims in

this case and the bases for those claims, as well as to confirm the informal information obtained
from counsel for the Trust and SPROC.
16.

The discovery wil be used to support Defendant's response to Plaintiffs' Motion

and a potential cross-motion for partial summary judgment declaring that any takings claims that
Plaintiffs may assert in this case are, at most, temporary takings claims.

The Requested Discovery Wil Lead to Discoverable Facts
17.

It is clear that the facts Defendant seeks to find exist and are discoverable,

provided the Court grants time for the undertaking. All of the deeds Defendant seeks should be
located in the records of Cochise County, Arizona. With time for discovery, Defendant can
obtain these items to assist it in responding to Plaintiffs' motion.
18.

Through written discovery propounded on Plaintiffs, the Trust, and SPROC, with

the assistance of subpoenas if necessary, Defendant should be able to clarify Plaintiffs' claims

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and obtain confirmation of

the informal information

that it has received to date from counsel for
the Trust and

SPROC and the Trust. In addition, if

necessar, depositions of employees of

SPROC wil be conducted.

Defendant Has Taken Reasonable Initial Steps Toward Obtaining the Necessary Discovery
19.

There has been no formal discovery in this case to date other than the obligatory

disclosures made pursuant to RCFC 26.
20. 21.

No discovery schedule has been entered in this case.
Defendant, however, has already begun the process of engaging LECG, a firm that

does title related work on a contractual basis, to do the title searches that are necessar for

Defendant to defend against Plaintiffs' motion. To date, LECG has provided a contract proposal
and necessary supporting information. The actual contract is on track to be consummated in the next several work days. LECG stands ready to do the title work Defendant requires for its
response to Plaintiffs' Motion once the contract has been executed.
22.

As previously indicated, Defendant has been in contact with counsel for the Trust

and counsel for SPROC in attempts to acquire informal information pertaining to the status of
negotiations regarding entry into a trail use agreement.
23.

If allowed time for discovery, Defendant will be able to overcome the hurdles

which have, until now, prevented it from discovering the facts it needs to respond to Plaintiffs'
motion.
24.

The overarching reasons Defendant has not transmitted any formal discovery to

obtain relevant information are that no discovery schedule has been set in this case and

Defendant has been pursuing information through informal means. Defendant has begun
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preparation of contention interrogatories that it intends to propound on Plaintiffs once this Court
orders a discovery period.
25.
Defendant's efforts to discover the necessar facts were slowed by lengthy delays

between requests for information from SPROC and receipt of that information.
I declare under penalty of perjury under the laws of

the United States of America that the

foregoing is true and correct.
Executed on January~ 1,2008.

12~ A, \)~
Rachel A. Dougan

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