 In the United States Court of Federal Claims
                                       Filed: April 19, 2018


     IN RE DOWNSTREAM ADDICKS
     AND BARKER (TEXAS) FLOOD-
     CONTROL RESERVOIRS                                 Sub-Master Docket No. 17-9002L



     THIS DOCUMENT APPLIES TO:

     ALL DOWNSTREAM CASES



                MEMORANDUM OPINION AND SCHEDULING ORDER

        On March 2, 2018, the court issued an Order requiring the parties to submit a Joint Status
Report by April 12, 2018 that includes:

       (1) a final list of the test properties together with a short statement of why each was
       selected, the proponent, and whether the property owner is an individual plaintiff
       or a member of a proposed class action; (2) a proposed discovery plan for
       jurisdictional and liability issues; and (3) a list of individuals tentatively identified
       for depositions.

ECF No. 66.

       The March 2, 2018 Order also scheduled a status conference for April 13, 2018 at the
United States District Court for the Southern District of Texas in Houston, Texas, after which the
court would attend a site tour of the test properties and the Addicks and Barker Flood-Control
Reservoirs. ECF No. 66; 3/1/18 TR at 27. On March 28, 2018, the court issued an Order listing
fourteen test properties selected by the parties. ECF No. 81.

        On April 6, 2018, the parties filed a Joint Status Report responding to Items 2 and 3 of the
March 2, 2018 Order. ECF No. 84. Plaintiffs’ proposed Scheduling Order provided for August
24, 2018, as the completion date for all discovery, with a trial to commence shortly after
November 12, 2018. ECF No. 84 at 1–2. The Government proposed that fact discovery close on
November 15, 2018, expert discovery close on February 28, 2019, with no trial date, but a four-
month schedule for summary judgment filings and a June 14, 2018 oral argument. ECF No. 84 at
7–11. In addition, the Government objected to the court attending a site tour of the test properties
and the Addicks and Barker Flood-Control Reservoirs prior to the trial. ECF No. 84 at 5–7. During
an April 10, 2018 telephone conference to discuss the April 6, 2018 Joint Status Report, the court
decided to cancel the site tour scheduled for April 13, 2018. 4/10/18 TR at 5.
        During the April 10, 2018 telephone conference, the Government also objected to a
schedule that would close discovery before the court ruled on the Government’s February 20, 2018
Motion To Dismiss. 4/10/18 TR at 25. As the Government is aware, RCFC 12(i) authorizes the
court to defer making a decision on “any defense listed in RCFC 12(b)(1)-(7) . . . until trial.”
RCFC 12(i);1 see also JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 12.50 (3d ed. 2012)
(explaining that the court’s power to “[d]efer[] matters until trial . . . allows [the] court to give
consideration to matters with such grave consequences as motions for dismissal under Rule
12(b)(1)–(7)”); see also 5C CHARLES A. WRIGHT & ARTHUR R. MILLER, FED. PRACTICE &
PROCEDURE § 1350 (3d ed. 2004) (“[T]he court may postpone a decision until evidence is
submitted at trial[,] if the jurisdictional issue is intertwined with the merits of the case.”). For these
reasons, the court has determined that the interests of justice require the court to defer ruling on
the Government’s February 20, 2018 Motion To Dismiss, pursuant to RCFC 12(i).

       In addition, after considering the parties’ proposals and argument at the April 10, 2018
telephone conference, the court has determined that the following schedule will supersede prior
Scheduling Orders and govern this case:

        May 15, 2018                    Both Parties Will Exchange The Names And Contact
                                        Information Of Expert Witnesses And Rebuttal Expert
                                        Witnesses.

                                        Both Parties Will Issue Subpoenas For Depositions2 And
                                        Any Additional Documents Required From Fact Witnesses,
                                        Including Third Parties.



        1
           Although the United States Court of Appeals for the Federal Circuit has not defined the
phrase “until trial,” other federal appellate courts have “observed that the method and timetable
for deciding a Rule 12(b) motion is left to the sole discretion of the trial judge” and have interpreted
Federal Rule of Civil Procedure 12(i) and its predecessor, Rule 12(d), to allow for deferral until
after trial. See In re School Asbestos Litigation, 921 F.2d 1310, 1316 (3d Cir. 1990); see also
Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1195 (6th Cir. 1988) (same); Roxse Homes,
Inc. v. Adams, 83 F.R.D. 398, 408 (D. Mass. 1979) (“It seems appropriate, . . . to interpret Rule
12[(i)] as allowing a court to defer [making a] ‘determination’ even after [the] ‘hearing,’ since the
reasons for doing so may become manifest only after [the] hearing has exposed them to
examination.”).
        2
          In the April 6, 2018 Joint Status Report, Plaintiffs identified thirteen federal employees
as likely deponents. ECF No. 84 at 4. The Government was unable to identify any specific
potential deponents, because it was waiting for Plaintiffs to respond to certain written discovery,
as well as the responses of approximately twelve third-party subpoenas sent to officials from
“various local government entities and/or development entities.” ECF No. 84 at 11. Nevertheless,
the Government requested that each party be allowed to take “up to thirty fact and expert
depositions.” ECF No. 84 at 11. The court considers the number of depositions suggested by both
parties to be reasonable in a case of this size. Therefore, each party may take up to thirty
depositions, but no deposition will exceed six hours, without leave of the court.

                                                    2
May 17, 2018         The Court Will Convene A Telephone Conference At 1:00
                     P.M. (EST). Dial-In Information Will Be Provided Under
                     Separate Cover.

September 14, 2018   Fact Discovery Concludes.

October 15, 2018     Both Parties Simultaneously Will Exchange Expert Reports.

December 7, 2018     Expert Discovery Concludes.

January 11, 2019     The Government Will File A Statement Of Material Facts
                     To Support Any Motion For Summary Judgment, Together
                     With Any Affidavits Or Declarations. See Rule of the
                     United States Court of Federal Claims (“RCFC”) 56(a).

January 18, 2019     Plaintiffs Will File A Response, Either Accepting Or
                     Rejecting The Government’s January 11, 2019 Statement Of
                     Material Facts. (If Plaintiffs Accept The Government’s
                     January 11, 2019 Statement Of Material Facts, The Court
                     Will Set A Briefing Schedule On February 1, 2019. If
                     Plaintiffs Do Not Accept The Government’s January 11,
                     2019 Statement Of Material Facts, A Pre-Trial Conference
                     Will Be Held On February 1, 2019.).

February 1, 2019     The Court Will Issue A Briefing Schedule For Summary
                     Judgment And Oral Argument, Pursuant To RCFC 56, Or A
                     Pre-Trial Conference And Hearing Will Be Held At 10:00
                     A.M. (CST) At The United States District Court For The
                     Southern District Of Texas In Houston, Texas. See RCFC
                     App’x A, VI (Post-Discovery Proceedings).

February 28, 2019    Both Parties Will Meet And Confer And Designate And
                     Exchange Exhibit Lists, Including Any Exhibits To Be
                     Proffered As A Summary. See RCFC App’x A, VI 13 (b),
                     (c); see also FED. R. EVID. 1006.

                     Both Parties Will Meet And Confer And Designate And
                     Exchange Witness Lists, Including Experts And Rebuttal
                     Experts. See RCFC App’x A, VI 13(b), (c).

                     Both Parties Will Exchange The Direct Testimony Of
                     Experts.

March 8, 2019        Both Parties Will File A Joint Certification. See RCFC
                     App’x A, VI 13(d).

March 25, 2019       Both Parties Simultaneously Will File Any Pre-Trial
                     Memorandum Of Law (Optional).

                               3
April 8, 2019       An Evidentiary Hearing To Develop The Factual Record
                    Required To Adjudicate Contested Issues Concerning
                    Jurisdiction And A Trial On Liability Will Commence At
                    10:00 A.M. (CST) At The United States District Court For
                    The Southern District Of Texas In Houston, Texas. Both
                    Parties Will Provide Opening Statements.

April 9, 2019       The Court Will Conduct A Ground And Aerial Site Tour
                    With Both Parties’ Counsel And Expert Witnesses.

April 10, 2019      The Evidentiary Hearing And Trial Will Resume And
                    Continue Until Completion.


IT IS SO ORDERED.

                                  s/ Susan G. Braden
                                  Susan G. Braden
                                  Chief Judge




                             4
