GROUND IMPROVEMENT TECHNIQUES, INC., et al v. USA

Filing 53

ORDER STAYING CASE pending the appeal before the US Court of Appeals for the Federal Circuit. The parties shall file a Notice within fourteen days of a decision by the Federal Circuit. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.

In the United States Court of Federal Claims
No. 12-57 C
(Filed July 12, 2013)
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GROUND IMPROVEMENT
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TECHNIQUES, INC., and MK
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FERGUSON COMPANY, for the use and *
benefit of GROUND IMPROVEMENT
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TECHNIQUES, INC.,
*
*
Plaintiffs,
*
*
v.
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THE UNITED STATES,
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Defendant.
*
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ORDER
The court has before it plaintiffs’ notice of appeal, filed June 28, 2013. The
appeal challenges every substantial ruling of the court in this litigation – the
dismissal of Counts I-III of the complaint and the finding that Ground
Improvement Techniques, Inc. (GIT) is not the real party in interest in this suit.
See Notice at 1 ¶¶ 1-3. The court also has before it fully briefed cross-motions
regarding substitution of counsel to represent the real parties in interest in this suit,
the Secured Parties in GIT’s bankruptcy. See Order of May 3, 2013, at 9 (setting
forth a schedule regarding the substitution of counsel issue which has now been
completed).
Now that plaintiffs have appealed this court’s real parties in interest ruling to
the United States Court of Appeals for the Federal Circuit, the court cannot rule on
the competing motions before it regarding the representation of the Secured Parties
in this suit. See, e.g., Gilda Indus., Inc. v. United States, 511 F.3d 1348, 1350
(Fed. Cir. 2008) (“Ordinarily, the act of filing a notice of appeal confers
jurisdiction on an appellate court and divests the trial court of jurisdiction over
matters related to the appeal.”) (citations omitted). Here, the Federal Circuit will

consider whether GIT is the real party in interest in this suit – that issue is
fundamentally “related” to the substitution of counsel dispute now before this
court. For this reason, the court must stay any further proceedings related to the
substitution of counsel issue.
As to the only other dispute still pending before this court, consideration of
the claim presented in Count IV of the complaint has been deferred until the
substitution of counsel issue could be resolved. See Order of February 14, 2013, at
3-4. Because the court must await the resolution of plaintiffs’ appeal before the
substitution of counsel issue may be resolved, this delay in the resolution of a
threshold procedural issue must also delay the court’s consideration of the parties’
competing positions as to the merits of Count IV of the complaint.1 Although
Count IV of the complaint is not “related” to subject matter of plaintiffs’ appeal,
the procedural threshold issue which would permit the court to adjudicate the
claims in Count IV of the complaint is related to that appeal. Thus, the court
cannot move forward with the litigation of the claims in Count IV of the complaint
until plaintiffs’ appeal has been resolved.
Accordingly, it is hereby ORDERED that:
(1)

The Clerk’s Office is directed to STAY all proceedings in the subject
matter until further order of the court; and

(2)

Plaintiffs shall FILE a Notice within fourteen days of a decision by
the United States Court of Appeals for the Federal Circuit on their
appeal.

s/Lynn J. Bush
LYNN J. BUSH
Judge

1

/ As the court has previously held, the Secured Parties must participate in this suit before
the court can resolve their claims presented in Count IV of the complaint. Opin. of December 5,
2012, at 11.
2