Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:07-cv-00165-JFM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
) ) ) Plaintiff, ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) HERNANDEZ, KROONE AND ASSOCIATES, INC.

NO. 07-165C (Judge Merow)

DEFENDANT'S UNOPPOSED MOTION FOR AN ENLARGEMENT OF TIME

Defendant, the United States, respectfully requests that this Court grant an enlargement of time of 50 days, to and including Friday, December 19, 2008, within which the parties shall complete non-expert discovery. Non-expert discovery currently is set to close on October 30, 2008. This is defendant's first request for an enlargement of time for this purpose. Plaintiff, Hernandez, Kroone, and Associates, Inc. ("HKA") will not oppose this motion. See August 27, 2008 Letter From Mr. Richard Mah (attached hereto as Exhibit A); August 29, 2008 Email from Mr. Laurence Lubka (attached hereto as Exhibit B). Our motion for an enlargement of time is necessary because additional time is required for both parties to complete non-expert discovery. On June 16, 2008, this Court granted, in part, the Government's March 26, 2008 motion to compel and for an enlargement of time. See Hernandez, Kroone, and Assocs., Inc. v. United States, 82 Fed. Cl. 229 (2008). In that order, the Court also set new discovery deadlines, HKA's opposition notwithstanding. Id. at 240. In particular the Court ordered: (1) that non-expert

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discovery would close on October 30, 2008; (2) the exchange of experts by November 7, 2008; and (3) that expert discovery, including depositions, would close on December 19, 2008. On June 23, 2008, we wrote HKA to ask that it comply with the Court's June 16, 2008 order within 30 days of its issuance, thereby providing "HKA with an amount of time equivalent to what HKA would have had, were the interrogatories served for the first time on June 16, 2008." See June 23, 2008 Letter from Matthew H. Solomson to Mr. Lubka (attached hereto as Exhibit C). In response to that letter and this Court's order, HKA provided supplemental responses to our interrogatories, but not until August 1, 2008. On August 12, 2008, we again wrote HKA both to identify a number of deficiencies with HKA's latest interrogatory responses and to request that HKA provide us with possible deposition dates in the month of September 2008 for various individuals. See August 12, 2008 Letter from Mr. Solomson to Mr. Lubka (attached hereto as Exhibit D). We requested that HKA respond within two weeks. Id. On August 27, 2008, we received a letter from Mr. Lubka's partner, Mr. Richard Mah, see Exhibit A, indicating that "it will not be possible for our firm to schedule depositions on this matter during the month of September." Accordingly, and in light of the fact that undersigned counsel of record for the Government will be unavailable for much of October, Mr. Mah agreed that "an enlargement of time for discovery appears to be appropriate." Id. Mr. Mah also indicated that plaintiff required two additional weeks to address the concerns we expressed in our August 12, 2008 letter regarding HKA's latest interrogatory responses. Id. On August 29, 2008, Mr. Lubka indicated that plaintiff would not oppose our instant request for an enlargement of time. See Exhibit B.

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Given the limited availability of counsel for both parties during the months of September and October ­ in addition to the parties' continued efforts to resolve our discovery dispute without court action ­ we respectfully request that the Court grant our motion for an enlargement of time of 50 days, to and including December 19, 2008, within which the parties shall complete non-expert discovery. With respect to the remaining discovery deadlines, we ask that the parties be permitted time to propose a schedule to the Court that is mutually acceptable to both parties for concluding discovery in this case. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Mark A. Melnick MARK A. MELNICK Assistant Director s/ Matthew H. Solomson MATTHEW H. SOLOMSON Trial Attorney, Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3274 Fax: (202) 514-8624 September 2, 2008 Attorneys for Defendant

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EXHIBIT A

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EXHIBIT B

Case 1:07-cv-00165-JFM Solomson, Matthew (CIV)
From: Sent: To: Cc: Larry Lubka [[email protected]] Friday, August 29, 2008 2:19 PM Solomson, Matthew (CIV) Richard Mah; Milene C. Apanian

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Subject: RE: Hernandez, Kroone, and Associates, Inc. (HKA), Fed. Cl. No. 07-165C We do not oppose a motion to enlarge time.

Laurence P. Lubka Hunt Ortmann Palffy Nieves Lubka Darling & Mah, Inc. -----Original Message----From: Solomson, Matthew (CIV) [mailto:[email protected]] Sent: Thursday, August 28, 2008 7:45 AM To: Larry Lubka Cc: Richard Mah Subject: Hernandez, Kroone, and Associates, Inc. (HKA), Fed. Cl. No. 07-165C

Mr. Lubka -We write in response to a letter we received yesterday from your colleague, Richard Mah, regarding Hernandez, Kroone, and Associates, Inc.'s (HKA) latest response to our interrogatories, our request for deposition dates, and an enlargement of time. Mr. Mah indicated that your firm is unable to schedule depositions during the month of September because you are unavailable due to another matter and your associate, Ms. Apanian, is out on maternity leave. Because I am unavailable during most of October, Mr. Mah agreed that "an enlargement of time appears to be appropriate." In light of the fact that non-expert discovery is currently set to close on October 30, 2008, we intend to move for an enlargement of time to and including December 19, 2008. The other deadlines will have to be moved accordingly. Such an enlargement also will provide HKA additional time to address the problems we raised in our August 12, 2008 letter regarding HKA's latest response to our interrogatories following the Court's granting of our motion to compel. Mr. Mah represented that he will "attempt to address []our concerns and will provide . . . further responses within two weeks" -- approximately one month from the date we sent our August 12, 2008 letter. We consent to HKA's request for an additional two weeks of time to address our concerns in an effort to resolve this dispute without court action. Please let me know by close of business today whether you will oppose our motion for an enlargement of time as outlined above. Thank you for your prompt response.
Matthew H. Solomson Trial Attorney, Commercial Litigation Branch Civil Division U.S. Department of Justice 1100 L Street, N.W. 9/2/2008

Case 1:07-cv-00165-JFM Document 29 Filed 09/02/2008 Washington, D.C. 20530 (for overnight deliveries, use 20005) [email protected] Tel. (202) 305-3274 Fax (202) 514-8624

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EXHIBIT C

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Document 29 U. Filed 09/02/2008 Justice 11 of 16 S. Department of Page

Civil Division

Washington, D.C. 20530

June 23, 2008 BY FEDERAL EXPRESS & EMAIL Laurence P. Lubka Hunt Ortmann Palffy Nieves Lubka Darling & Mah, 301 North Lake Avenue 7th Floor Pasadena, CA 91101-1807 Re : Dear Mr. Lubka: On June 16, 2008, Judge Merow granted, with but a few, limited exceptions, our March 26, 2008 motion to compel. Thus, the Court's order instructs that plaintiff, Hernandez, Kroone, and Assoc., Inc. ("HKA"), has yet to, but must, provide complete responses to the following interrogatories: 4, 5, 6, 7, and 9. In particular, the Court ordered as follows: Inc.

Hernandez, Kroone, and Assoc., Inc. v. United States, (Fed. CI. No. 07-165C )

Interrogatory No. 4. "The court agrees with defendant's point that 'including' is a restrictive word. Plaintiff must provide a complete response .... [D]efendant [also] is entitled to the underlying contended facts, not just a conclusory statement of failure to cooperate. Specific instances are required." June 16, 2008 Slip op. at ii. Interrogatory No. 5. ~Plaintiff has not met its obligation of specificity here. It is assumed that plaintiff intends to submit evidence to establish specific government interference and delay and will have to assemble this material for introduction at trial. Discovery response of such material is appropriate." Id. at 15.

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Interrogatory No. 6. ~Defendant is entitled to know the identification of materials alleged to be defective .... Further response is required." Id. at 16. With respect to this interrogatory, our position remains that HKA must identify the precise (alleged) errors or defective specifications, not merely "categories of defective specifications and/or designs." Id. Interrogatory No. 7. "Defendant is entitled to know whether plaintiff is pursuing all of the claims previously submitted to the contracting officer .... Plaintiff's response may not be qualified by limiting words such as 'including, but not limited to.'" Id. at 18. Interrogatory No. 9. ~Discovery addressed to disclosure of this evidence is appropriate and a response is required." Accordingly, HKA must disclose alleged "specific" instances of ~work [that] was required to be performed which was beyond the contract terms." Id. at 19.
Although the Court did not provide a deadline by which HKA must provide the foregoing information, we expect HKA to do so within 30 days from the date of the Court's order (i.e., July 16, 2008). That provides HKA with an amount of time equivalent to what HKA would have had, were the interrogatories served for the first time on June 16, 2008. We note, however, that the interrogatories were served more than six months ago, on December 12, 2007.

Finally, we expect that HKA will comply, in full and in good faith, with the Court's order and, accordingly, will provide us with complete and sufficiently detailed information per our discovery requests and subsequent correspondence. Should HKA fail to do so, however, we will not hesitate to seek the Court's involvement once again.
Very truly yours, MATTHEW H. SOLOMSON Trial Attorney cc: Milene C. Apanian

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EXHIBIT D

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