Mahoney

224 Ct. Cl. 668, 1980 U.S. Ct. Cl. LEXIS 186, 1980 WL 13223

Opinion

On May 30, 1980 the court entered the following order denying defendant’s motion for rehearing under Rules 7(d) and 151(b) respecting the order entered April 11, 1980, reported at 223 Ct.Cl. 713, and amending said order as set forth:

We have before us, in the above-captioned case, defendant’s suggestion for rehearing en banc, pursuant to Rule 7(d), and defendant’s motion for rehearing, pursuant to Rule 151(b); of our order of April 11, 1980, as well as plaintiffs opposition to both. Upon consideration by the full court of the suggestion for rehearing en banc, the same is denied. Upon consideration, by the panel which issued the order dated April 11, 1980, of the motion for rehearing, the same is denied. Further, upon consideration of the submissions of the parties, but without oral argument, the order of April 11, 1980, issued in this case is amended as follows:

1. Page 715, line 30, delete "assert it” and substitute:

"raise the offset in its answer”

2. Page 718, lines 12-15, delete "That they * * * was filed.”

3. Page 718, last line between "offsets” and "Massive,” insert:

In this context, "concrete and positive evidence” is much short of full proof and in other cases, as here, will depend on circumstances. Here, defendant’s ability to obtain from third parties, such as the general partners or the FHA, information needed to bolster its offset, was at least as great as plaintiffs. Having had reasonable opportunity and ample time to obtain "concrete and positive evidence,” and having failed to do so, defendant’s offsets were properly subject to a motion to dismiss. What constitutes discovery abuse is determined in light of what is a reasonable burden on the adverse party in the circumstances of the particular case. Plaintiffs and defendants alike must be protected against discovery abuse in all its forms. That is the core of this order. It is as impermissible a misuse of defendant’s offset right to assert the offset on mere suspicion, as it would be to make up offset allegations out of whole cloth, with the hope of substantiating them by discovery. There is no magic about offsets to make it less of an abuse to assert offsets, supported only by a hope to substantiate them by discovery, than it would be to assert any other claim or defense with only a similar hope.

IT IS SO ORDERED.