Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:06-cv-00167-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) )

OTAY MESA PROPERTY L.P., et al., Plaintiffs, v. UNITED STATES, Defendant.

No. 06-167L Hon. Lawrence M. Baskir

JOINT MOTION TO AMEND DISCOVERY SCHEDULE Plaintiffs, Otay Mesa Property L.P., Rancho Vista Del Mar, and Otay International LLC, and Defendant, United States, request that the Court amend the discovery schedule as described by the parties' Joint Preliminary Status Report, filed on September 19, 2006 (see Joint Prelim. Status Rep. at 8-9, Sept. 19, 2006), and as approved by the Court in its November 1, 2006 Order (see Order at 2, Nov. 1, 2006) as the parties need more time to complete discovery on the liability issues in this case. The parties are proceeding diligently with discovery. Plaintiffs and Defendant completed the exchange of Rule 26 Initial Disclosures on October 13, 2006. Plaintiffs and Defendant exchanged written discovery requests on November 8, 2006. Plaintiffs and Defendant exchanged responses to written discovery on December 18, 2006, and are still in the 1

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process of providing supplemental responses. The parties require additional time to take depositions and complete discovery. The parties respectfully propose the following extended schedule to the Court: (i) Exchange discovery responses and produce documents with respect to parcels 5 through 9 of the Subject Property (the parcels added by the filing of the Amended Complaint) by February 16, 2007; (ii) Depose fact witnesses as to liability issues 1 by March 30, 2007. The parties represent that the first session of depositions is scheduled for February 20-23, 2007; a second session will be scheduled in late March, 2007. In the Joint Preliminary Status Report filed September 19, 2006, both parties stated that at that time they contemplated filing cross-motions for summary judgment on liability. At present, Plaintiffs are still considering whether they will file a motion for summary judgment or not. Defendant presently intends to file a dispositive motion following the completion of the discovery set forth herein. Defendant specifically reserves the right, if any, to re-open discovery should issues remain after its dispositive motion has been decided, although it understands that Plaintiffs may oppose reopening of discovery.

1 As discussed in the Joint Preliminary Status Report filed September 19, 2006, the parties agreed that this case should be bifurcated, with liability issues litigated first, and damage issues thereafter if liability is found.

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(iii) Current liability discovery shall be completed by March 30, 2007. Defendant specifically reserves the right, if any, to re-open discovery should issues remain after its dispositive motion has been decided, although it understands that Plaintiffs may oppose re-opening of discovery. (iv) The parties respectfully request that a status conference be scheduled at the Court's convenience following March 30, 2007. (Defendant notes that Defendant's counsel will be out of the office on annual leave April 12-27, 2007.) The parties respectfully request that the Court amend the discovery schedule in this case.

Dated: February 9, 2007

Respectfully submitted,

/s/ Roger J. Marzulla Roger J. Marzulla Nancie G. Marzulla MARZULLA & MARZULLA 1350 Connecticut Ave., N.W. Suite 410 Washington, DC 20036 (202) 822-6760 (202) 822-6774 (facsimile) Counsel for Plaintiffs

/s/ Susan V. Cook SUSAN V. COOK Natural Resources Section 3

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Environment & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044 (202) 305-0470 (202) 305-0506 (facsimile) Counsel for Defendant

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