BRACK v. USA

Filing 10

Order of Dismissal. The Clerk is directed to enter judgment. Signed by Judge Marian Blank Horn. (dls) Copy to parties.

ORlGlttAt
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FILED
JOHN BRACK,

JUN

Plaintiff,

| 9 20t5

U.S. COURT OF
FEDERAL CLAIMS

v,

No. 124209C
Fifed: June 19,2015

UNITED STATES,

Defendant.

***********
ORDER
Plaintiff is one of twelve current or former employees of the united states
Department of Agriculture, Forest service, employed in the Los padres National Forest
in Cafifornia, who filed a complaint on January 19,2012, to recover $2,500,000.00 in
damages. The complaint brought by these plaintiffs was filed in the United States District
court for the central District of california on behalf of the plaintiffs by counsel.
subsequently, however, plaintiffs filed a stipulation of dismissal in that court, and the
District court dismissed the complaint, without prejudice. see casev D. Allen, et al., v.
Ed schafer. et al., No. 08-8391 (c.D. cat. Dec. B, 2009). when ptaintitts filea their
complaint in the United states court of Federal claims on January 19,2012, they were
represented by different counsel. Plaintiffs' original attorney of record in this court was
Michael D. Daniels. subsequently, Bennett Rolfe, who was one of the original attorneys
in the District court case, replaced Mr. Daniels as plaintiffs' counsel. After Mr. Rofe
passed away, certain plaintiffs filed motions to represent themselves pro se. which the
court granted, continuing their cases pursuant to the initial complaint filed by the plaintiffs
in this court.

on october 7, 2013, the court consolidated plaintiff s case with the eleven other
pro se plaintiffs. After consolation, the defendant fiied a motion to dismiss
count two in
plaintiffs' complaint, plaintiffs' breach of contract claims. on January 22,201s, this coun
issued an opinion in the above captioned cases dismissing count two in plaintiffs'
complaint, plaintiffs' breach of contract claims. on February 4,201s, the court issueo an
order instructing:
each plaintiff shall file with the court, and send copies to the defendant. a
notice indicating whether or not each such individual wishes to proceed with
count one of their complaint, the Fifth Amendment takings claims. The
notice shall be filed on or before Friday, Februa ry 20, 2015. plaintiffs may
consult private counsel or continue to proceed pro se, which is curren v
their status in the cases filed in this court. plaintiffs also mav confer with

counsel of record for the defendant prior to filing their notice of whether or
not they intend to proceed with their case. Although this court order requires
either a positive or negative notice of intent to proceed to be filed by each
plaintiff, failure to file in a timely manner will be understood by the court as
indication that the individual does not wish to oroceed and that the olaintiffs
case should be dismissed.
Only Mr. Brack responded to the court instruction to all the plaintiffs to file a notice
with the court if they wished to proceed with the balance of their claims. Mr. Brack so
indicated, stating: "The purpose of this notice is to inform the court that | (John w Brackplaintiff) in case No.124209c wish to precede with judication [sic] of count one (Fifth
Amendment takings claim) of my complaint. I believe I can meet the standards outlined
by law to establish a valid claim."
On April 20,2015, the defendant filed a motion to dismiss. Plaintiff has not timely
filed a response to the motion to dismiss. As noted in the court's March 2, 2015 Order:
In the event defendant files a motion to dismiss, on or before Monday, May
11,20'15, Mr. Brack shall file a response to the motion to dismiss. Mr. Brack

indicated in his unfiled notice that "l believe I can meet the standards
outlined by law to establish a valid claim." In his response, Mr. Brack, shall
identify, in detail, those standards in an effort to defeat the motion to
dismiss, with the necessary citations. Mr. Brack should be aware that when
plaintiffs were represented earlier by Mr. Michael Daniels, Mr. Daniels filed
a limited response, which Mr. Brack should review and incorporate, if
appropriate, to his response to the motion to dismiss. On or before Friday,
May 22, 2015, defendant may file its reply.
Therefore, on May 29,2015, the court issued an order indicating if "Mr. Brack does not
file a response to the motion to dismiss on or before Friday, June 'lz,2o1s, the court will
dismiss Mr. Brack's case for failure to prosecute." (emphasis in original). As of June 19,
2015, plaintiff has not filed a response. Therefore, plaintiffs claims are DlsMlssED, with
prejudice. The Clerk's Office shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED,

RIAN BLANK HORN
Judge