Free Notice (Other) - District Court of Federal Claims - federal

Case 1:04-cv-01389-GWM

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PAUL K. CHARLTON United States Attorney District of Arizona MICHAEL A. JOHNS Assistant U.S. Attorney Arizona State Bar No. 3803 Two Renaissance Square 40 N. CentralAvenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Of Counsel: MARION T. CORDOVA D.C. Bar No. 39113 US Det_artment of Agriculture 14_h& Independence, SW Room 332913 Washington, DC 20250 Telephone: (202) 720-4978

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. Department Service,

UNITED STATES DISTRICT COURT DISTRICT FARIZONA O

Fire-TrolHoldings,LLC, v. Plaintiff, of Agriculture Forest

CIV-03-2039-PHX-JAT REPLYIN SUPPORTOF MOTION TO DISMISS

Defendant. Defendant U.S. Department of Agriculture, Forest Service, submits the following Reply Memorandum in support of its Motion to Dismiss the Complaint. MEMORANDUM Plaintiff s opposition to this Ruie 8(e)(1) motion evades the issue. Ruie 8(e)(l) requires that the averments of a Complaint be "simple, concise and direct". The Complaint clearly contains an unreasonable amount of argument and evidentiary material, including descriptions of

conversations, a practice condemned by cases such as Deyo v. Internal Revenue Service, 2002 WL 1482517 (D. Conn. 2002) and Carngan v ,aliforma StateLegislature et al., 263 F.2d 560, 565 (9thCir. 1959). For example, paragraph 47 on page 10 of the Complaint alleges that certain statements were made at a meeting involving several people. That page of the Complaint

contains approximately 29 different factual allegations which counsel for Defendant would have

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to research and decide whether to admit or deny. If that page is representative of allegations, prohibits there are approximately 1247 such allegations to be responded

of the 43 pages to. Rule 8(e)(1) of needless Complaint,

this kind of needless

detail, which in fact constitutes

the raising

controversies not Defendant's

at the pleading stage, contrary to Rule 8(a)(2).

Thus, it is Plaintiff's

Motion to Dismiss, which violates the rules of pleading.

Plaintiff cites cases and rules which are not applicable to the issue raised in the Motion. Jenkins v. McKeithen, 395 U.S. 411,421 (1969) andImagineering, Inc. v. KiewittPac. Co., 976

F.2d 1303, 1306 (9_hCir. 1992) both involve motions to dismiss for failure to state a claim, not whether a complaint was so onerous as to violate Rule 8(e)(i). a dismissal for lack of jurisdiction,

Conley v. Gibson, 355 U.S. 41, 47 (1957) involved inapplicable to the issue in this Motion.

Plaintiff cites Rules 1 and 8(f) which are not at issue would certainly further the goal of Rule 1 to of the issues. This is especially so in a case

here, but a "simple, concise and direct" Complaint secure a just, speedy and inexpensive involving determination

the limited standard of judicial review of final agency action under the Administrative Act, where it is not appropriate to litigate de novo all the evidentiary events occurring Thus, there is no reason to put The guidance in Rule 8(f) to

15 i Procedures

161 over several years before the final agency action was taken.

i

17i hundreds if not thousands 18 19 20 21 22 23 24 25 26 27 28

of such facts at issue in a complaint.

construe pleadings to do substantial justice is inapplicable, Complaint cannot be construed away.

because the problem raised with this

The opinion in Hilska v. Jones, 217 F.R.D. 16, 22 (D.D.C. 2003) required a pro se plaintiff to plead a more definite statement of claims. statement. contained The instant Motion does not seek a more definite

Kimes v. Stone, 84 F.3d 1121, 1129 (9 th Cir. 1996) involved whether the complaint sufficient allegations showing the pleader was entitled to relief, as required by Rule

8(a), which is irrelevant to whether the instant Complaint violates Rule 8(e)(1). In Desai v. Tire Kingdom, Inc.. 944 F.Supp. 876, 879 (M.D. Fla. 1996) the defendant allegations on the grounds that the complaint sought more specific

did not give fair notice of the claims, arguing that The opinion is irrelevant to the

there was a heightened

pleading standard in civil rights cases. 2

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pending issue. Plaintiff's complex, challenging Procedures

attempt to justify its onerous Complaint

by alleging that this case is

is simply not correct.

The instant Complaint appears to present three legal theories fire retardantviolation of the Administrative Regulations. 1952) the

the decision not to use Plaintiff's Act, the Competition in Contracting

Act, or the Federal Acquisition

In Dublin Distribs. Inc. v. Edward and John Burke, Ltd., 109 F.Supp. 125 (D.C.N.Y. court required plaintiff in an antitrust counts, another inapplicable of Plaintiffslegal claims.

suit to provide a more definite statement in separate The instant Motion does not seek clarification

Rule 8(a) opinion.

The instant Motion was not filed for the purpose needless answering of argumentative and evidentiary

of delay, but to avoid the onerous and details in an answer, which would set up The parties should file simple,

needless disputes, which Rule 8(e)(1) was designed to avoid. concise and direct pleadings speedy and inexpensive Rule 8(e)(l).
J

which appropriately

frame the issues and which permit the just, should be dismissed pursuant to

resolution of the case. The Complaint

Respectfully

submitted this

d_

day of January, 2004. PAUL K.CHARLTON United States Attorney District ofArizona

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_. Assistant

. JOHNS U.S. Attorney

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5 Original filed and copy of the foregoing marled this -7_A day of January, 2004, to: David V. Seyer LAW OFFICES OF DAVID V. SEYER 1761 East McNair Drive, Suite 102 Tempe, Arizona 85283-5002 Jennifer L. McCready Best Best & Krieger, LLP 400 Capitol Mall, Suite 1650 Sacramento, CA 95814 Paul F. Dauer LAW OFFICES OF BEST BEST & KRIEGER, LLP 400 Capitol Mall, Suite 1650 Sacramento, California 95814 Marion T. Cordova US Department of Aericulture 14'1'& 'Independence.SW Room 3329D Washington, DC 20250

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