Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:06-cv-00295-MMS

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Filed 09/11/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LAKELAND PARTNERS, L.L.C., d/b/a/ LAKELAND NURSING HOME, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 06-295C (Judge Sweeny)

UNITED STATES' MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF'S MOTION FOR DISCOVERY AND MEMORANDUM On September 5, 2008, this Court issued an Order requesting that the plaintiff file a memorandum explaining why the Court should not construe plaintiff's failure to seek discovery to address issues raised by the United States in its motion for summary judgment regarding the Anti-Deficiency Act, 31 U.S.C. § 1341 as a waiver of plaintiff's right to conduct discovery on the issue. The Court's Order also asked the plaintiff to indicate whether it intended to file a motion for discovery pursuant to Rule 56(f) of the Rules of the United States Court of Federal Claims ("RCFC"). On September 9, 2008, plaintiff filed the memorandum requested in the Court's Order as well as a motion for discovery pursuant to Rule 56(f) of the RCFC. It is unclear to counsel for the United States whether the plaintiff was permitted to file a motion for discovery pursuant to RCFC 56(f) without leave of Court. If the plaintiff was permitted to file the motion for discovery pursuant to RCFC 56(f), then, pursuant to Rule 6(b) of the RCFC, the United States respectfully requests a 14-day extension of time within which to respond to the plaintiff's motion. The United States' response is currently due on September 23, 2008. The extension would bring the date for responding to the motion to October 7, 2008. This is the defendant's first request for an extension of time for this purpose. The United States also

Case 1:06-cv-00295-MMS

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requests the Court's permission to respond to the plaintiff's memorandum at that time. Counsel for the United States contacted counsel for the plaintiff on September 11, 2008, by telephone and e-mail to determine whether plaintiff would oppose this motion but did not receive a response prior to filing this motion. Counsel for the United States was assigned to this case on September 11, 2008, and had not previously been informed that she would be assigned to this case. In addition, counsel for the United States is leaving for a vacation on September 12, 2008 and will not return to the office until September 29, 2008. Previous counsel for the United States is due to depart this office shortly for maternity leave and is unable to assist with this matter. For these reasons, the defendant respectfully requests that the Court grant defendant's unopposed motion for an extension of time of 14 days, to and including October 7, 2008, within which to respond to the plaintiff's motion for discovery pursuant to Rule 56(f) of the RCFC and plaintiff's memorandum in response to the Court's Order dated September 5, 2008.

Respectfully submitted,

GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director

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Case 1:06-cv-00295-MMS

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/s/Elizabeth Anne Speck ELIZABETH ANNE SPECK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tel: (202) 307-0369 Fax: (202) 307-0972

September 11, 2008

Attorneys for Defendant

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Case 1:06-cv-00295-MMS

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CERTIFICATE OF FILING I hereby certify that on the 11th day of September, 2008, a copy of the foregoing "UNITED STATES' MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF'S MOTION FOR DISCOVERY AND MEMORANDUM" 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/Elizabeth A. Speck

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