Free Order on Motion for Extension of Time to Complete Discovery - District Court of Federal Claims - federal

Case 1:07-cv-00285-MMS

Document 15

Filed 02/12/2008

Page 1 of 2

In the United States Court of Federal Claims
No. 07-285 L (Filed: February 12, 2008) ************************************* ELIP, LLC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * ************************************* ORDER On January 29, 2008, defendant in the above-captioned case filed Defendant's Motion to Extend the Discovery Period, seeking an additional ninety days in which to conduct discovery. Defendant explained that Congress did not appropriate funds required for it to hire an expert appraiser until December 26, 2007, about a month later than expected. Defendant further explained that "[t]hroughout November and early December of 2007," it "contacted seven appraisers to discuss the appraisal of the subject property," but "[f]or reasons varying from an inability to conduct the appraisal in a timely manner to a professed inability to be objective in the appraisal . . . , none of the initial appraisers . . . were engaged . . . ." Defendant indicated that it has now found an expert who is willing to conduct the appraisal, that its contract with the expert was "in the process of being finalized," and that it expected the appraisal to be completed by April 1, 2008. Defendant requests that the discovery deadline be extended to May 1, 2008. Plaintiff objects to defendant's request, arguing that "[d]efendant's lack of due dilligence and unnecessary delay should preclude the Court from extending the discovery period in this case." Specifically, plaintiff contends that defendant has had ample time in which to obtain an appraisal, indicating that defendant "has been in continuous possession of the subject property since July of 1994," that "Plaintiff put Defendant on notice of this dispute in 2002, when Defendant ceased paying rent for using the property," and that "Plaintiff put Defendant on further notice of this dispute on May 5, 2007, when Plaintiff filed its Complaint . . . ." Finally, plaintiff argues that if the court does extend the discovery period, it should only be extended until April 1, 2008, which would provide defendant ample time to obtain an appraisal. Plaintiff's arguments concerning defendant's diligence in pursing this matter are without merit. The parties first indicated their intent to retain expert appraisers in their September 27, 2007 Joint Preliminary Status Report ("JPSR"). The court then conducted the preliminary

Case 1:07-cv-00285-MMS

Document 15

Filed 02/12/2008

Page 2 of 2

scheduling conference on November 1, 2007. The purpose of the conference was "to acquaint the court with the issues in this case, to discuss any special problems that may exist, and to establish a schedule for future proceedings." RCFC App. A, ¶ 7. At this time, defendant alerted the court to a "special problem" it had encountered: it was unable to retain an expert because it was operating without budget authority (presumably, since October 1, 2007­the beginning of the fiscal year­a mere four days after the parties filed their JPSR). Yet, despite its inability to retain an expert formally, defendant contacted eight appraisers in November and December to ensure that it was able to retain one upon obtaining funding. Shortly after obtaining the necessary funds, defendant and its expert began the process of entering into a contract. The court does not perceive any delay or lack of due diligence on the part of defendant. To the contrary, counsel for defendant has demonstrated his commitment to moving this case forward. Plaintiff's counsel should be aware that unfounded accusations against his opposing counsel fail to further his client's cause. At the November 1, 2007 preliminary scheduling conference, at the request of the parties, the court established a ninety-day period for fact and expert discovery. This discovery period was premised on defendant having budgetary authority to retain an expert by December 1, 2007, thus giving defendant two months in which to conduct expert discovery. It now appears that defendant believes that two months was not enough time to complete the expert discovery process. Assuming that defendant receives its expert report no later than April 1, 2008, the court presumes that defendant anticipates needing an additional thirty days in which to exchange expert reports with plaintiff and conduct expert depositions, if necessary. Thus, the court finds defendant's request for additional time to be reasonable, and to be to the benefit of both parties. Accordingly, the court GRANTS defendant's motion, and extends the time for completing fact and expert discovery until Thursday, May 1, 2008. The parties shall then file, no later than Thursday, May 15, 2008, a joint status report suggesting further proceedings. IT IS SO ORDERED.

s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge

-2-