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

Case 1:06-cv-00931-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE GROS VENTRE & ASSINIBOINE TRIBES BY AND THROUGH THE FORT BELKNAP INDIAN COMMUNITY COUNCIL, THE GOVERNING BODY OF THE FORT BELKNAP INDIAN COMMUNITY OF THE FORT BELKNAP INDIAN RESERVATION Plaintiffs, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 06-931L-NBF

DEFENDANT'S MOTION FOR EXTENSION OF TIME WITHIN WHICH TO FILE ANSWER OR OTHERWISE RESPOND TO COMPLAINT Defendant respectfully makes this motion for a twenty-one (21) day extension of time, to and including March 20, 2007, within which to file its Answer or otherwise respond to the Complaint herein. A proposed order is attached hereto as an exhibit. The grounds for this motion are as follows: 1. Plaintiff filed this case on December 29, 2006. In the case, Plaintiff alleges issues

and claims relating to the trust accounting and trust management duties and responsibilities allegedly owed by Defendant to Plaintiff. 2. Defendant is presently obligated to file its Answer or otherwise respond to the

Complaint on or before February 27, 2007. 3. On or about February 7, 2007, Anthony Hoang, counsel for Defendant, conferred

by telephone with Plaintiff's counsel, James Vogel, about this case, Plaintiff's issues and claims,

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and possible means of resolving the dispute and settling the action, including the use of alternative dispute resolution (ADR). Among other things, Defendant's counsel understood that counsel for both parties agreed in principle to (a) explore the possibility of undertaking settlement discussions; (b) examine several activities, including informal requests and productions of relevant or potentially relevant documents and data, in exploration of and in preparation for settlement discussions; and (c) seek appropriate enlargements of time or temporary stays of litigation so that they could prepare for and engage in settlement discussions. 4. Plaintiff's counsel subsequently informed Defendants' counsel by email on

February 7, 2007, that he would meet with the governing body of the Plaintiff Tribe on February 8, 2007, to discuss the Plaintiff's preferences for proceeding. Plaintiff's counsel also related that he would inform Defendant's counsel of the outcome of that meeting as soon as possible. As of the filing of this motion, Defendant's counsel has not been informed of any subsequent decision by the Plaintiff regarding its willingness to pursue settlement discussions or ADR in lieu of formal litigation. 5. In reliance on the preliminary agreement between counsel to explore the

suitability of this case for ADR or settlement negotiations in lieu of formal litigation, Defendant's counsel ceased work on preparation of an Answer or other response to the Complaint and instead drafted a proposed Joint Motion For a Temporary Stay of Litigation and submitted the draft to Plaintiff's counsel on February 11, 2007, for Plaintiff's review and comment. Defendant's counsel also left telephone messages for Plaintiff's counsel on February 19 and 20, 2007, seeking comment on the draft motion and to discuss case management. Further, Defendant's counsel provided Plaintiff's counsel with a revised draft Joint Motion For a

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Temporary Stay of Litigation via email and fax on February 20, 2007. As of the filing of this motion, Defendant's counsel has not received any reply to these communications. 6. Defendant's attorney of record has been summoned for jury duty on February 23,

2007, and continuing thereafter as necessary. Further, counsel understands from discussion with the office of Plaintiff's counsel that Plaintiff's counsel may not return to his office until February 23, 2007. Hence, Defendant is concerned about the ability of counsel to complete their discussions and file a Joint Motion For a Temporary Stay or, in the alternative, to file a Answer or other response to the Complaint prior to the filing deadline of February 27, 2007. 7. Defendant seeks a twenty-one (21) day enlargement of the February 27, 2007,

deadline to file its Answer or otherwise respond to the Complaint. During that time period, Defendant's counsel will seek to either complete the drafting of a Joint Motion or complete preparation of its Answer or other response to the Complaint. 8. Undersigned counsel has been unable to ascertain whether Plaintiff's counsel will

oppose this Motion for Enlargement of Time. Undersigned counsel left a telephone message with Plaintiff's counsel on February 20, 2007, as well as email and fax communications on the same date requesting Plaintiff's views on the Defendant's request for an enlargement of time. As of the filing of this motion, Defendant's counsel has not received any reply. Based on the prior communication between counsel, Defendant's counsel believes Plaintiff's counsel has been unable to timely respond to the communications described above, but that Plaintiff intends nonetheless to proceed as described in paragraph three (3) above and would not oppose this motion. 9. Based on the foregoing, Defendant respectfully requests that the Court grant its

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motion to extend the current deadline for filing its Answer or otherwise responding to the Complaint, from February 27, 2007, to March 20, 2007. 10. The granting of this motion would serve the public interest by promoting judicial

economy and conserving the parties' limited resources. Further, it would not cause any undue prejudice or harm to the rights and interests of the parties herein. WHEREFORE, the Defendant respectfully requests that the motion for an extension of time to file its Answer or otherwise respond to the Complaint be GRANTED. Respectfully submitted this 21st day of February, 2007, MATTHEW J. MCKEOWN ACTING ASSISTANT ATTORNEY GENERAL /s/ John H. Martin John H. Martin, Attorney of Record United States Department of Justice Environment and Natural Resources Division Natural Resources Section 1961 Stout Street, Eighth Floor Denver, CO 80294 TEL: (303) 844-1383 FAX: (303) 844-1350 Attorney of Record for Defendants

OF COUNSEL: ANTHONY P. HOANG United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0241 Fax: (202) 353-2021

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ELISABETH C. BRANDON Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 TERESA E. DAWSON United States Department of the Treasury Financial Management Service Office of the Chief Counsel Washington, D.C. 20227

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CERTIFICATE OF SERVICE I hereby certify that on February 21, 2007, I served the foregoing Motion For Extension of Time by causing a full, true and correct copy thereof to be sent to the following persons by U.S. Mail, first class postage prepaid, as well as facsimile and email delivery in accordance with paragraph 19 of General Order No. 42A to: James A Vogel, Attorney of Record for Plaintiff P.O. Box 525 Hardin, Montana 59034 Dated this 21st day of February 2007. /s/ John H. Martin John H. Martin United States Department of Justice Environment and Natural Resources Division Natural Resources Section 1961 Stout Street, Eighth Floor Denver, CO 80294 (303) 844-1383 (tel) (303) 844-1350 (fax) [email protected] Attorney for Federal Defendants