Free Response - District Court of Federal Claims - federal

Case 1:06-cv-00282-MBH

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Filed 07/21/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS [Bid Protest]

CHANT ENGINEERING, INC., Plaintiff, vs. UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, Defendant. and DAYTON T. BROWN, INC., Intervenor. No. 1:06-CV-00282 Assigned to Hon. Marian Blank Horn

OBJECTION AND OPPOSITION TO PLAINTIFF CHANT ENGINEERING CO., INC.'S MOTION FOR LEAVE TO SUBMIT A SUPPLEMENTAL DECLARATION Dale H. Oliver Jon Corey Rachel Fiset QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Attorneys for Third-Party Intervenor Dayton T. Brown, Inc.

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Pursuant to the Court's June 15, 2006 Order, Intervenor Dayton T. Brown, Inc. hereby objects to and opposes plaintiff Chant Engineering Co., Inc.'s ("Chant") Motion for Leave to Submit a Supplemental Declaration. Dayton T. Brown objects on the grounds that this motion is brought improperly and the Court's Order does not permit any party to file a surreply. Chant argues that a surreply or supplemental declaration is necessary because Dayton T. Brown's statement that its web-site contained a typographical error is a new factual assertion. Not so. The evidence that Chant purports to address in its surreply--a discrepancy between Dayton T. Brown's web-site and Dayton T. Brown's separate brochure--was submitted in connection with Dayton T. Brown's Supplemental Brief on June 26, 2006. Interestingly, however, Chant's supplemental declaration in surreply is silent as to its own factual error contained in its Response to Dayton T. Brown's Supplemental Brief, namely the misrepresentation of another manufacturer's equipment as belonging to Dayton T. Brown's. Chant, therefore, has made no showing of why a surreply to permit a supplemental declaration should be permitted in this matter. Surreplies are disfavored by the courts. See Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1361 (Fed. Cir. 2005) (cautioning counsel not to file improper surreplies); see also Wright ex rel. Trust Co. of Kansas v. Abbott Labs., 62 F. Supp. 2d 1186, 1187 (D. Kan., 1999) ("Surreplies are disfavored, and normally will be permitted only upon prior invitation by the court."); see also Vulcan Materials Co. v. Atofina Chemicals Inc., 355 F. Supp. 2d 1214, 1246 (D. Kan., 2005) (denying a surreply because "surreplies are disfavored," the case presented no reason for departing from the general rule, and the parties had already received more than

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sufficient opportunity to brief all issues relating to the case).1 For the foregoing reasons, Dayton T. Brown respectfully requests that Chant's Motion for Leave to Submit a Supplemental Declaration be denied in its entirety.

DATED: July 21, 2006

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP

By s/Dale H. Oliver Dale H. Oliver Attorneys for Intervenor Dayton T. Brown, Inc.

See also General Motors Corp. v. Am. Ecology Envtl. Services Corp., 2001 WL 1029519, *1 (N. D. Tex., 2001) ("Surreplies are highly disfavored by the court because they are usually an attempt by one side to get the last word on an issue, rather than a means to bring new or supplemental authority to the attention of the court.")

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