Case 1:11-cv-00408-ABJ Document 92

Filed 03/09/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ UNITED WESTERN BANK, ) ) Plaintiff, ) ) v. ) C.A. No. 11-408 (ABJ) ) OFFICE OF THE COMPTROLLER OF ) THE CURRENCY, et al. ) ) Defendants. ) DEFENDANTS RESPONSE TO PLAINTIFFS PROPOSED ORDER REGARDING SCHEDULING OF DISPOSITIVE MOTIONS Plaintiffs proposed order regarding the scheduling of dispositive motions is objectionable for a number of reasons. First, the Plaintiff suggests a staggered filing schedule that would require Defendants who do not bear the burden of proof in this case to outline its case-in-chief first and gives the Plaintiffs the final word in briefing the issues. If the Court believes a staggered schedule is appropriate, then it should require Plaintiff to file its substantive motion first. By contrast, the Defendants proposal for simultaneous briefing schedules gives neither party a tactical advantage. Moreover, while Plaintiff seeks to justify its proposal via reference to the Federal Rules of Appellate Procedure and the local rules of other jurisdictions, Defendants proposal adheres to the usual summary judgment practice that is followed in this Court. See, e.g., SanofiAventis US, LLC v. FDA, 2012 U.S. Dist. LEXIS 14873 (D.D.C. Feb. 7, 2012)(Jackson, J.). Second, the Defendants respectfully submit that proposing a briefing schedule that begins in May rather than April is appropriate given the importance of the case. The Administrative Record in this case consists of over 4,200 pages. Plaintiffs proposal would give Defendant less than four weeks to prepare a dispositive motion governing the broad issues at hand. While

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Defendants can understand Plaintiffs desire to reach a conclusion in this case, the Defendants submit that there are no exigent circumstances surrounding this case that demand an accelerated briefing schedule. United Western Bank has been in receivership for well over a year, and Plaintiffs can point to no impending developments in the administration of the receivership estate that would warrant a rushed approach by either the parties or the Court. Finally, the Plaintiffs proposed order is objectionable because it includes provisions not requested by the Court in its February 9, 2012 order, nor relevant to the case; for example, the Plaintiffs proposed order references matters including expert witness testimony and motions for reconsideration that are not relevant to the issue of a briefing schedule for summary judgment. In summary, the Defendants proposed order adheres to this Courts standard briefing practices, gives neither party any tactical advantage, and should be entered by the Court.

Dated: March 9, 2012

Respectfully submitted, Julie L. Williams, Chief Counsel Daniel P. Stipano, Deputy Chief Counsel Horace G. Sneed, (MI Bar No. P33434) Director, Litigation Division Gregory F. Taylor, Assistant Director, Litigation Division DC Bar No. 417096 /s/Christopher A. Sterbenz Christopher A. Sterbenz, Counsel, Litigation Division DC Bar No. 437722 250 E Street, S.W. Washington, D.C. 20219 Telephone: (202) 927-9124 Facsimile: (202) 874-5279 christopher.sterbenz@occ.treas.gov Attorneys for Office of the Comptroller of the Currency and Acting Comptroller John G. Walsh 2

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of March 2012, I electronically filed a true copy of the foregoing. To the best of my belief, this Courts electronic filing system will send notice of this filing to all counsel of record by e-mail and all parties have access to this filing through the Courts electronic filing system. /s/Christopher A. Sterbenz Christopher A. Sterbenz