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

Case 1:07-cv-00157-LAS

Document 45

Filed 06/19/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________________________ ) PACIFIC GAS AND ELECTRIC COMPANY, ) SOUTHERN CALIFORNIA EDISON COMPANY, ) AND CALIFORNIA ELECTRICITY ) OVERSIGHT BOARD, ) ) Plaintiffs, ) ) v. ) No. 07-157C ) (Senior Judge Smith) ) THE UNITED STATES, ) ) Defendant. ) ________________________________________________) ) ) SAN DIEGO GAS & ELECTRIC CO., ) ) Plaintiff, ) No. 07-167C ) (Senior Judge Smith) v. ) ) ) THE UNITED STATES, ) ) Defendant. ) ) DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' SURREPLY Defendant, the United States, respectfully submits this reply to plaintiffs' response to defendant's motion to strike plaintiffs' surreply. The plaintiffs admit that their surreply addresses not only "new arguments," as permitted by the Court's order, but also"newly expanded arguments" raised by our reply brief. The Court's order did not permit plaintiffs this indulgence. In our reply, we raised only one "new argument," concerning choice of law, and otherwise responded point-by-point to the arguments raised in plaintiffs' response. Plaintiffs

Case 1:07-cv-00157-LAS

Document 45

Filed 06/19/2008

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should have accordingly tailored their surreply to the issue of choice of law. Instead, they ignored the Court's order and rules for their own gain. Further, we note that our 39-page reply brief, filed with leave of the court, is not "the only reason this issue has come up," as the plaintiffs' claim. We filed such a comprehensive reply because plaintiffs' 60-page response, with its 52 detailed, single-spaced footnotes, itself violated the spirit of this Court's initial pagelimit order. In short, this Court should not permit plaintiffs' practices; it should strike their surreply or delay next week's argument to allow us sufficient time to prepare an appropriate response. Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director OF COUNSEL: Sean B. McNamara Trial Attorney Department of Justice Peter Burger Attorney Bonneville Power Administration John D. Bremer Attorney Western Area Power Administration June 19, 2008 s/ Mark A. Melnick MARK A. MELNICK Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-0475 Fax: (202) 305-7644

Attorneys for Defendant

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Case 1:07-cv-00157-LAS

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Filed 06/19/2008

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CERTIFICATE OF FILING I hereby certify that on this 19th day of June, 2008, a copy of the foregoing "DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' SURREPLY" 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. The parties may access this filing through the Court's system.

s/ Mark A. Melnick