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

Case 1:02-cv-00796-FMA

Document 81

Filed 05/24/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

INFORMATION SYSTEMS & NETWORKS CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant.

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No. 02-796C (Judge Allegra)

DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR AN ENLARGEMENT OF TIME TO FILE DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO OUR MOTION FOR SUMMARY JUDGMENT In its response, plaintiff presents three basic arguments for opposing the Government's request for an enlargement. Because these arguments do not rebut the Government's need for an extension, the defendant respectfully requests that its motion for an enlargement of time be granted, and that the Court order that defendant's motion for summary judgment be due on or before June 12, 2007. First, plaintiff argues that this would be the third extension that the Government has received in connection with this motion. Plaintiff is incorrect. Counsel for the Government first entered an appearance in this case on November 22, 2006, and initially believed that it would be able to file a dispositive motion for summary judgment on February 23, 2006, less than one month after the deadline for plaintiff's second deposition of Ellen Erdelsky (Ms. Erdelsky's deposition was held on January 24, 2007).1 The Government was incorrect and sought and

The Government notes, however, that such motion generally may be filed at any time, and that the Rules of the United State Court of Federal Claims themselves do not place a limit upon when and how such motions must be filed.

1

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received an extension of 21 days to file its initial motion.2 The plaintiff, not the Government, then sought the second extension in this case, for 25 days. Thus, while this is the third extension of time in connection with this briefing, it is only the second sought by undersigned counsel for the Government in connection with this motion (and the first request for an extension of the relevant reply deadline). Second, plaintiff appears to argue that the Government has no obligation to consult with agency counsel in order to file a "simple" reply to a response. Plaintiff, however, has presented a response that is almost twice as long as the Government's initial motion for summary judgment, and that contains over 400 pages of addendum. An attorney's responsibilities pursuant to Rule 11 of the Rules of the United States Court of Federal Claims apply to reply briefs as well as initial briefs, and agency counsel, with their direct access to the agency, play an important role in helping Government counsel meet such responsibilities. Further, plaintiffs' argument assumes that its own motion is correct and that the Government has not met its summary judgment burden. The Government disagrees, as it will set forth in its reply brief. Third, plaintiff argues that the Government should not be granted an extension because such an extension might make any subsequent oral argument upon the motion inconvenient for the plaintiff. The parties have not specifically requested oral argument in connection with this motion, although the Government will make itself available if the Court so requires. Setting aside the fact that such hypothetical future scheduling concerns arise at least in part from plaintiff's own prior 25-day extension, plaintiff can be reassured that the Government is aware of its obligation to act in a professionally courteous manner, and will work with the Court and
2

Plaintiff has not shown that there was anything improper about this prior request. -2-

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plaintiff to accommodate any reasonable scheduling requests that the plaintiff may have in the future. For these reasons, defendant respectfully requests that its motion for an enlargement of time be granted, and that the Court order that defendant's motion for summary judgment be due on or before June 12, 2007. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director s/ Brian M. Simkin by Deborah A. Bynum BRIAN M. SIMKIN Assistant Director /s/ Steven M. Mager STEVEN M. MAGER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification United 8th Floor 1100 L Street, NW Washington, D.C. Tel: (202) 616-2377 Fax: (202) 305-7643 [email protected]

May 24, 2007

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CERTIFICATE OF FILING I hereby certify that on this 24th day of May 2007, a copy of the foregoing "DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR AN ENLARGEMENT OF TIME TO FILE DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO OUR MOTION FOR SUMMARY JUDGMENT" 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. Parties may access this filing through the Court's system.

/s/ Steven M. Mager Steven M. Mager Trial Attorney Commercial Litigation Branch Civil Division Department of Justice