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

Case 1:07-cv-00881-JPW

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Filed 02/15/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SDS INTERNATIONAL, INC, Plaintiff,

v.

THE UNITED STATES, Defendant,

and HiPK, INC., Defendant-Intervenor.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07-881 (Judge Weise) Bid Protest

DEFENDANT'S MOTION FOR LEAVE TO WAIVE FILING OF AN ANSWER, OR, IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME TO RESPOND TO THE COMPLAINT Defendant, the United States, hereby respectfully requests leave of Court to waive the requirement that the defendant file an answer in the above-captioned matter. Plaintiff has not yet taken a position on whether it will oppose this motion. The Rules of the Court of Federal Claims ("RCFC") state that the Rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." RCFC 1. In order to facilitate the speedy resolution of the instant bid protest, and in accordance with the purposes of RCFC 12(a)(2) (which defers the filing of an answer until 10 days after a motion made pursuant to RCFC 56 has been decided) and RCFC 52.1 (which, in this context, is the functional equivalent of RCFC 56), we respectfully request that the Court waive the requirement that defendant file an answer. Merits briefing has already begun in this case

Case 1:07-cv-00881-JPW

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and, thus, the filing of an answer would not aid the Court or the parties in fully and fairly litigating this case. Thus, the "just, speedy and inexpensive determination" of this action counsels in favor of waiving the requirement that defendant file an answer. Plaintiff will not be prejudiced in its briefing without a formal answer. Indeed, plaintiff already has completed its briefing of the merits of this case. Moreover, the administrative record in this case has been filed and, thus, plaintiff is in possession of all of the facts that have a bearing on the resolution of this action. Plaintiff is also, therefore, in a position to know which allegations in its complaint are controverted by the evidence of record. Defendant can offer no version of facts that is contrary to that record. In addition, an answer will do nothing to put plaintiff on additional notice of defendant's legal positions in this case. In its answer, a defendant is required, at most, to respond only to "the averments upon which the adverse party relies," and not to the conclusions of law that a plaintiff urges in its complaint. See RCFC 8(b). The Rules do not require a defendant to supply in its answer any affirmative, detailed explanation of its legal position in the absence of an assertion of one of the affirmative defenses enumerated in Rule 8(c). And, in any event, the Government's legal positions in this case have been set forth in its motion for judgment on the adminstrative record. Thus, waiving the requirement that an answer be filed does not prejudice plaintiff. This case has already moved beyond the stage where the filing of an answer would add to the development of the case. It is appropriate now for the parties to focus their efforts on resolving the merits as expeditiously as possible. This goal is consistent with the purposes of Rules 1, 12(a)(2) and 52.1 securing the just, speedy, and inexpensive determination of the instant actions. Accordingly, for the reasons set forth in detail above, defendant respectfully requests

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that the Court grant leave to waive the requirement for filing of an answer. In the alternative, defendant requests that the Court grant an extension of time, to and including ten days after a decision on this motion by the Court, to respond to the complaint in the above-captioned bid protests.

Respectfully submitted, JEFFREY S. BUCHOLZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

s/ Robert E. Chandler ROBERT E. CHANDLER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 514-4678

February 15, 2008

Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 15th day of February 2008, a copy of the foregoing "DEFENDANT'S MOTION FOR LEAVE TO WAIVE FILING OF AN ANSWER, OR, IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME TO RESPOND TO THE COMPLAINT" was 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/ Robert E. Chandler