Free Response - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

Document 183

Filed 02/25/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 03-289C (Judge Allegra)

DEFENDANT'S RESPONSE TO PLAINTIFF'S DECLARATION OF FEES AND COSTS Pursuant to the Court's June 27, 2007 opinion and order in this matter, United Medical Supply Co. v. United States, 77 Fed. Cl. 257, 276-77 (2007), as amended, defendant, the United States, respectfully responds to the declaration of Frank L. Broyles, filed by plaintiff, United Medical Supply Company, Inc., on February 1, 2008, concerning its attorney fees and costs. The order limits this response to the "reasonableness or accuracy only of plaintiff's claimed fees and costs." Id. at 277 (emphasis omitted). We understand this to preclude us from addressing the allowability of the claimed amounts, i.e., whether they "were incurred after November 18, 2005, because of defendant's malfeasance and misrepresentations," or "were incurred in specifically pursuing [the] spoliation matter." Id. at 276. Especially given the foregoing limitation upon this filing, we take exception to the numerous new allegations contained in plaintiff's declaration that bear no apparent relation to plaintiff's entitlement to fees or costs, and which plaintiff appears simply to have included in the declaration opportunistically. Broyles Decl. ¶¶ 7-15. It should suffice to respond that these new allegations are irrelevant to a determination of plaintiff's fees or costs, and that plaintiff has filed no motion for relief under Rule 37 of the Rules of the United States Court of Federal Claims

Case 1:03-cv-00289-FMA

Document 183

Filed 02/25/2008

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("RCFC") based upon any of the allegations in Mr. Broyles's declaration regarding our responses to interrogatories or presentation of witnesses pursuant to RCFC 30(b)(6). Alternatively, to the extent the Court may take any of plaintiff's new allegations into account in awarding fees or costs, we respectfully request the Court to modify the June 2007 order to allow us to respond to the new allegations. Plaintiff requests fees and costs totaling $175,000. Broyles Decl. ¶¶ 21, 23. The billing records appended to the declaration appear to support this amount. Because we have had no discovery concerning plaintiff's fees or costs, we have no basis upon which to question the "accuracy" of any of the time entries or other charges. See 77 Fed. Cl. at 277. With respect to "reasonableness," id., we have two observations: First, the 11.5 hours recorded by Mr. Broyles, plaintiff's counsel of record, on July 31, 2006, for what appear to be primarily administrative tasks relating to filing a brief, appear excessive, both in duration and billing rate. Second, the same can be said of the 7.5 hours recorded by Mr. Broyles for personally reviewing electronic records and "prepar[ing a] spreadsheet" on July 5, 2007. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General s/Jeanne E. Davidson JEANNE E. DAVIDSON Director

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Case 1:03-cv-00289-FMA

Document 183

Filed 02/25/2008

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OF COUNSEL: MICHAEL McGLINCHEY Trial Attorney Defense Supply Center Philadelphia

s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel Commercial Litigation Branch Department of Justice Attn: Classification, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Attorneys for Defendant

February 25, 2008

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Case 1:03-cv-00289-FMA

Document 183

Filed 02/25/2008

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CERTIFICATE OF FILING I certify that on February 25, 2008, the attached was filed electronically. I understand that service is complete upon filing and parties and others may access this filing through the Court's electronic system. s/Kyle Chadwick

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