Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. PLAINTIFF'S MOTION FOR AN ORDER SETTING A FINAL PRETRIAL CONFERENCE DATE Pursuant to Rules 7(b), 16(a) and 16(d) of the Rules of the Court of Federal Claims, plaintiff Wisconsin Electric Power Company ("WE") respectfully moves the Court to enter an Order setting August 17, 2007 as the date for the final pretrial conference. Counsel for WE has attempted, but was unable, to contact Government counsel to determine whether the Government opposes this motion. Previously, the Government indicated that it believed that an August 17 pretrial date was too long before the September 10, 2007 trial date, but the Government has not proposed an alternate date. WE believes that the pretrial conference should be held on August 17 for several reasons. The conference should be held sufficiently in advance of trial so that the parties may focus their final trial preparations on the relevant issues. Both parties have expressed an interest in attempting to streamline trial in this matter. See, e.g., Appendix (App.) 6-8, 12-13, 26-27. Given this interest, an August 17 pretrial date provides sufficient time before trial for the parties to implement methods for streamlining trial that may be agreed upon prior to or during the pretrial conference. Additionally, the Labor Day holiday occurs just before trial. WE would like the conference in advance of that date to minimize scheduling conflicts. WE counsel also has a number of other responsibilities and would very much desire setting the pretrial date (which will involve travel) in the near future. Finally, WE believes (Senior Judge Merow)

No. 00-697C

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that setting a final, firm pretrial conference date of August 17 may prompt resolution of several pretrial issues that have been outstanding for quite some time. If the parties cannot resolve these issues, at least they can be placed before the Court at the August 17 pretrial conference, at a time when the parties can still benefit in their trial preparations from the Court's input. More specifically, there are several outstanding issues that WE has attempted to resolve with the Government, but without success. First and foremost is the date of the pretrial conference. WE proposed dates to the Government on several occasions, but the Government declined to agree to the date or to recommend an alternate date. See, e.g., App. 23, 26-27. The second issue relates to whether the Government will stipulate to WE's incurred costs. In its letter of January 26, 2007, the Government noted that it no longer denied the accuracy of several of WE's claimed costs. App. 1-5. WE's February 16, June 18 and June 22 letters sought the Government's response on additional audit related issues and a stipulation regarding WE's other claimed costs. App. 9-11, 24-27. The Government has not responded to WE's further requests. The third issue relates to the resolution of exhibit issues and possibly narrowing of issues for trial. The parties tentatively agreed to meet on Thursday, June 7 to discuss trial exhibits and associated issues. App. 14-15, 17-18. The Government cancelled that meeting shortly before it was to take place. WE then attempted to reschedule a meeting for June 26, but again the Government could not meet. App. 22, 26-27. By letter dated June 22, 2007, WE requested that the Government agree to set a date for a rescheduled meeting. App. 2627. The Government has yet to respond to this request. WE believes that resolution of these exhibit issues now, to the extent possible, will narrow the issues that may arise and may otherwise need to be resolved at trial.

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Other issues remain outstanding, including WE's request that the Government produce its trial exhibits in electronic format. App. 16-21. The Government has not responded to this request. Further, the Government has indicated that it may desire to conduct additional discovery regarding WE's 2006-2007 costs, but the Government has not provided a schedule for any such discovery. To the extent that the Government may contend that the pretrial conference should be set nearer to the September 10 trial date, we respectfully disagree. The outstanding issues need to be resolved in the near future and we believe that establishing an August 17 pretrial date will prompt resolution of these issues. For the foregoing reasons, WE respectfully requests that the Court issue an Order setting August 17, 2007 as the date of the final pretrial conference.

Dated: July 13, 2007 Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005-2001 (202) 434-1675

Respectfully submitted, s/Richard W. Oehler by s/Donald J. Carney Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 (206) 359-8419 Phone (206) 359-9419 Fax Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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CERTIFICATE OF SERVICE I certify under penalty of perjury that, on July 13, 2007, I caused a copy of the foregoing "Plaintiff's Motion For An Order Setting a Final Pretrial Conference Date" to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/Donald J. Carney Donald J. Carney

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