Free Response - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 275

Filed 01/26/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, No. 00-697C Plaintiff, Senior Judge Merow v. THE UNITED STATES, Defendant. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Wisconsin Electric Power Company ("WE") opposes the Government's fourth motion, filed today, for an enlargement of time in which to file its RCFC Appendix A ¶ 14(b) memorandum of contentions of fact and law ("memorandum"). As WE mentioned in its January 24, 2007 opposition to the Government's third enlargement request, the Government's failure to timely file its memorandum is interfering with WE's ability to prepare for trial. Moreover, the Government's stated grounds for the instant motion are insufficient. Therefore, WE respectfully requests that the Court deny the Government's motion. The Government's motion states that it now needs more time to analyze its legal position. Specifically, the Government wants to analyze the United States Court of Appeals for the Federal Circuit's decision in Citizen's Federal Bank v. United States, No. 05-5173, 2007 WL 162820 (Fed. Cir. Jan. 24, 2007) issued earlier this week. As WE explained to Government counsel, the Government should file its memorandum now and then supplement it, if necessary, with additional legal authority when it is prepared to do so. The Government does not need additional time to file its memorandum because (1) the Citizen's Federal Bank decision is not a spent nuclear fuel case decision, (2) the decision should not affect the Government's factual contentions, and legal issues can be addressed through post trial briefing, (3) WE did not have this decision -1-

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Case 1:00-cv-00697-JFM

Document 275

Filed 01/26/2007

Page 2 of 3

available when it filed its brief, and (4) if the Government wanted to incorporate the decision into its brief it has already had two business days to do so. To the extent that either party wants to brief this case without disturbing the Court's pretrial deadlines, they are free to do so in supplemental briefings. WE needs to understand what the Government contends will be at issue in the trial of this case which will begin shortly in March. The Government's request to hold up disclosing its position for another four1 days, for a total of six days to analyze the Citizen's Federal Bank decision, is unsound and should be rejected. For the foregoing reasons, we respectfully request that the Court deny the Government's requested enlargement. DATED : January 26, 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

The Government's motion requests "three days (two business days), to and including Tuesday, January 30, 2007." Defendant's Motion for an Enlargement of Time at 1 (emphasis added). Since the Government's filing is due today, January 26, 2007, the Government is requesting four additional days.
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Case 1:00-cv-00697-JFM

Document 275

Filed 01/26/2007

Page 3 of 3

CERTIFICATE OF SERVICE I certify under penalty of perjury that, on January 26, 2007, I caused a copy of the foregoing "Plaintiff's Opposition To Defendant's Motion For An Enlargement Of Time" 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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