Free Response to Motion - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 270

Filed 01/24/2007

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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 third motion, filed today, for an enlargement of time. WE's trial preparations will be materially prejudiced if the Government is allowed to again delay filing its RCFC Appendix A ¶ 14(b) memorandum of contentions of fact and law and its ¶ 16 exhibit list. Therefore, WE respectfully requests that the Court deny the Government's motion. The Government's continued delay in filing its pretrial pleadings, particularly the Government's memorandum of contentions of fact and law, is materially prejudicing WE's ability to prepare its case. WE needs to understand the entire nature of the Government's case in order to properly prepare for trial. The Government's memorandum was originally due on December 8, 2006. The cumulative effect of the enlargements of time for the Government's pleadings is depriving WE of adequate time to address these matters. Moreover, the Government's instant request is to postpone its filing until Friday of this week. This will push WE's ability to start appropriate trial preparations into next week. The Government has had ample time to prepare its memorandum and other pleadings. WE timely filed its memorandum of contentions of fact and law nearly three months ago, on October 27, 2006. The Government claims that its requested enlargement ultimately stems from its drafting of objections to WE's proposed trial exhibits. The Government does not mention, however, that the Government has had WE's Appendix A, ¶ 13(a) Exhibit List since -1-

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Case 1:00-cv-00697-JFM

Document 270

Filed 01/24/2007

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September 18, 2006. This list contained the vast majority of the exhibits on WE's final exhibit list. Moreover, the Government also fails to disclose that WE pared down its Appendix A, ¶ 16 Exhibit List to 697 exhibits on the "expect to call" list and 291 exhibits on the "may call" list. Many of the documents on the "expect to call" list are DOE, DOE contractor, and NRC documents with which the Government is thoroughly familiar. The Government has not provided sufficient grounds for the requested enlargement. Finally, WE accommodated the Government last week when the Government requested a second, five day enlargement from the January 19, 2007 due date until today. The Government did not contact WE until the afternoon of January 19, 2007 regarding its requested enlargement. At that time the Government stated that the subject filings were nearly complete. Accordingly, WE expected the Government to meet the revised deadline. Yet the Government now makes the same representation in the third enlargement request filed today ("work on the subject filings is almost, but not yet, complete."). The Government's January 19, 2007 motion for an enlargement also stated that the Government needed additional time because lead counsel had recently been involved in deposing additional witnesses in Wisconsin. Yet the Government had previously stated in its original December 7, 2006 motion for a 42 day enlargement that the Government believed that the "depositions can be conducted in sufficient time to allow . . . us to file our paragraph 14(b) memorandum, paragraph 15 witness list, and paragraph 16 exhibit list on the date [January 19, 2007] requested." The Government did not contact WE counsel until late this afternoon regarding its latest enlargement request, shortly before filing its motion. The Government's prejudicial, last minute request for a third enlargement should not be accommodated and WE therefore opposes the Government's motion for an enlargement. For the foregoing reasons, we respectfully request that the Court deny the Government's requested enlargement.

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Case 1:00-cv-00697-JFM

Document 270

Filed 01/24/2007

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DATED : January 24, 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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Case 1:00-cv-00697-JFM

Document 270

Filed 01/24/2007

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CERTIFICATE OF SERVICE I certify under penalty of perjury that, on January 24, 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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