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

Case 1:06-cv-00401-NBF

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Filed 09/07/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) JILLINA MANION,

No. 06-401L Hon. Nancy B. Firestone

UNOPPOSED MOTION TO REVISE DISCOVERY SCHEDULE Defendant, United States of America, with the agreement of plaintiff, hereby respectfully moves to revise the discovery schedule in the above referenced matter. By an Order dated November 7, 2006, the Court set June 11, 2006 as the closing date for fact discovery in this case. (Docket No. 12). That order also set August 9, 2007, as the closing date for expert discovery. On defendant's unopposed motion, the Court subsequently extended the fact discovery period until September 10, 2007 and the expert discovery period until November 7, 2007. (Docket No. 15). Due to certain developments in the discovery process, defendant, with the agreement of plaintiff, respectfully moves for another ninety (90) day extension of the period for fact discovery, or to and including December 10, 2007. Defendant also requests that the period for expert discovery be extended ninety (90) days, or to and including February 5, 2008. This is the second request for extension of these deadlines. Pursuant to this Court's Order of November 7, 2006, the parties entered into discovery. At that time, plaintiff was already engaged in discovery in a related tort action which she filed against the United States in the United States District Court for the District of Oregon. Manion v. United States, No. 06-739 (D.Or. filed May 22, 2006), dismissed Oct. 18, 2006, appeal

Case 1:06-cv-00401-NBF

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Filed 09/07/2007

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docketed, No. 06-36075 (9th Cir. Dec. 11, 2006). Since that time, the parties have worked together to complete the discovery requests left outstanding after plaintiff's tort action was dismissed, and have exchanged written discovery and document requests pursuant to the discovery order of this Court. Despite the parties' best efforts, more time is needed for the completion of discovery in this matter. This case arises from the construction of a United States Coast Guard ("Coast Guard") housing project in Astoria, Oregon, that was completed in or around 1994. Specifically, plaintiff alleges that work done in the first of three phases of the Coast Guard housing project undercut the lateral support to her home, causing subsidence and cracking in plaintiff's home. In 2002, the Coast Guard, pursuant to its normal document retention policy, destroyed the contract and engineering documents that detailed the work done during that first phase of the Coast Guard housing project. After an exhaustive, yet fruitless, search of the Coast Guard's stored files, defendant learned that copies of some first phase documents were still in the possession of the project's lead engineering firm, OTAK. The parties reviewed these documents and, to date, have conducted two depositions based on the OTAK documents. Despite the document review, the examination by deposition of two of the housing project's principal engineers and the examination by deposition of plaintiff, further depositions in this matter are required. At a minimum, the examination by deposition of certain Coast Guard employees is still required. These deposition have not yet been completed due to the retirement of one deponent from the Coast Guard and the location of another deponent at his work station in San Juan, Puerto Rico. The information obtained in these depositions likely will also serve as input for the work of the expert witnesses in this matter. Accordingly, a ninety (90) day enlargement of the deadline

Case 1:06-cv-00401-NBF

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Filed 09/07/2007

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for completion of expert discovery, or to and including February 5, 2007, is also requested. WHEREFORE, for the reasons stated above, defendant respectfully requests that the deadline for completion of fact discovery be extended ninety (90) days, or to and including December 10, 2007 and the deadline for completion of expert discovery be extended ninety (90) days, or to and including February 5, 2008. Dated: September 7, 2007.

Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division s/ Mark T. Romley Mark T. Romley Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P. O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 305-0458 Fax: (202) 305-0274