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

Case 1:06-cv-00115-SGB

Document 31

Filed 08/02/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DANNY C. SIMONS AND SALLY J. SIMONS, Plaintiffs, v. THE UNITED STATES, Defendant.

) ) ) ) No. 06-115C ) (Judge Braden) ) ) ) )

DEFENDANT'S RESPONSE TO THE SIMONS' MOTION FOR HEARING In response to the Simons' motion for a hearing on their motions to strike, defendant respectfully states that it has no objection to a hearing where the primary focus is upon the Government's motion to dismiss. The Simons are seeking to strike the Government's motion to dismiss, and the Government's opposition to the Simons' motion to strike the motion to dismiss. The motions to strike cannot realistically be considered independently of the motion to dismiss that they request that the Court strike. The Simons can raise all of the issues in their motions to strike in their arguments in opposition to the Government's motion. The Government objects to the Simons' proposed format for the hearing in that they apparently seek to call witnesses, and use unidentified exhibits. The primary issue raised by the Government in its motion to dismiss is that the Simons' complaint should be dismissed as barred by the doctrine of res judicata. As our motion to dismiss and other filings establish, all of the issues the Simons raise here were, or could have been, raised by them in the action in the District Court for the District of Utah. The Simons' primary response to this has been that district courts do not possess jurisdiction to consider cases where the Government is seeking more than $10,000 in taxes. These issues are strictly issues of law. No witnesses, therefore, are required, nor are

Case 1:06-cv-00115-SGB

Document 31

Filed 08/02/2006

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exhibits necessary. Although defendant will, obviously, participate in the hearing wherever the Court chooses to schedule it, we see no reason that it should not be held in Washington, DC, with the Simons allowed to appear by telephone if they so choose. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Mark A. Melnick MARK A. MELNICK Assistant Director

Dated: August 2, 2006

s/Michael N. O'Connell MICHAEL N. O'CONNELL Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tel: (202) 307-0282 Attorneys for Defendant

Case 1:06-cv-00115-SGB

Document 31

Filed 08/02/2006

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Certificate of Filing I hereby certify that on this 2nd day of August, 2006, a copy of the DEFENDANT'S RESPONSE TO THE SIMONS' MOTION FOR HEARING 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/Michael N. O'Connell Michael N. O'Connell