Free Motion to Strike - District Court of Federal Claims - federal

Case 1:07-cv-00157-LAS

Document 43

Filed 06/17/2008

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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 MOTION TO STRIKE PLAINTIFFS' SURREPLY Defendant, the United States, respectfully requests that the Court strike plaintiffs' surreply, filed on June 16, 2008, because plaintiffs' brief brazenly defies this Court's June 2, 2008 order. That order permitted the plaintiffs, investor-owned utilities ("IOUs"), to "file a surreply brief, not to exceed 20 pages, addressing Defendant's new arguments on or before June 16, 2008." In our reply to the IOUs' response to our motion to dismiss, we relied upon documents produced to us by the Bonneville Power Administration after our motion to dismiss was filed. See Reply at 8-9. Because our motion to dismiss did not incorporate these

Case 1:07-cv-00157-LAS

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Filed 06/17/2008

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documents, the IOUs did not have an opportunity to respond to our argument relying upon the documents, which concern the choice of law governing this dispute. Accordingly, we stated in our reply that we would not object to the IOUs filing a surreply limited to addressing these documents. Id. Our reply raised no other new issues or new arguments. Our reply merely responded, point-by-point, to the arguments raised in the IOUs' response. The IOUs have exploited the Court's order to file a 14-part surreply attacking every single argument -- new and old -- presented in our reply brief. In so doing, the IOUs have violated the Court's order restricting their surreply to "new arguments." Pursuant to Rule 1 of the Rules of the United States Court of Federal Claims, this Court should strike those portions of the IOUs' brief that fail to comply with the Court's order. Alternatively, we request that the Court postpone the oral argument in this matter scheduled for one week from today to allow us sufficient time to prepare a response to the IOUs' detailed new arguments. Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

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Case 1:07-cv-00157-LAS

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Filed 06/17/2008

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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 17, 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 06/17/2008

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CERTIFICATE OF FILING I hereby certify that on this 17th day of June, 2008, a copy of the foregoing "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