Free Motion for Leave to File Out of Time - District Court of Federal Claims - federal

Case 1:06-cv-00111-CCM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ JOHN DOE and JANE ROE for themselves ) and on behalf of all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) __________________________________________)

Civil Action No. 06-111C Judge Christine O.C. Miller

PLAINTIFFS' MOTION FOR LEAVE TO FILE OUT OF TIME THEIR REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO DISMISS THE COMPLAINT WITHOUT PREJUDICE

Plaintiffs JOHN DOE and JANE ROE ("Plaintiffs") move for leave to file their Reply to Defendant's Response to Plaintiffs' Motion to Dismiss the Complaint without prejudice. Plaintiffs filed their motion to dismiss the Complaint without prejudice electronically on September 27, 2006. On that date, Plaintiffs received notice by email from the Clerk of Court that the electronic filing had been completed successfully. Thereafter, Plaintiffs received no notice whatsoever of the electronic filing on October 3, 2006 of Defendant's Response to Plaintiff's Motion to Dismiss. Nor did Plaintiffs receive any notice of the Court's Order that was filed electronically on October 4, 2006 requiring Plaintiffs to respond by October 17, 2006. Plaintiffs' counsel inadvertently discovered late in the day on October 24, 2006 that the Government had filed a pleading electronically eleven days earlier in another case in this court in which Plaintiffs' counsel is Counsel of Record. No electronic notice was sent to Plaintiffs' counsel in that case either, thereby leading counsel to inquire at the Clerk of Court's office as to
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why electronic notice of filings by the Government had mysteriously ceased. Court personnel have concluded that Plaintiffs' counsel's email address had been deleted from the court's electronic system by unknown persons. The system has no provision for back-up notification in its place. Plaintiff's counsel had no way of knowing that the electronic system was now programmed to accept filings from the Defendant and from the Court without notifying Plaintiff's counsel of those occurrences. When Plaintiff's counsel contacted this Court's clerk the very next day, October 25, 2006, to explain why Plaintiffs had not replied to Defendant's response by October 17, 2006, counsel was instructed that it was counsel's responsibility to maintain the proper functioning of the court's ability to notify counsel of Defendant's electronic filings, and that a response was required either that day or the next day unless Defendant agreed to an enlargement of time to file out of time. This case was filed on February 14, 2006, only eight months ago. Defendant complains that Plaintiffs have exercised a lack of diligence and bad faith in prosecuting their case because an inordinate amount of time has passed from the filing of the Complaint to Plaintiffs' motion for dismissal without prejudice. But, Defendant conveniently has failed to note that almost two months elapsed until April 12, 2006 before it filed a Motion for Enlargement of Time for an additional 45 days until June 1, 2006 to respond to the Complaint. On June 6, 2006, three months and three weeks after the Complaint was filed, Defendant filed a motion for summary judgment supported by a lengthy and self-serving factual recital by General Leon J. LaPorte ("General LaPorte"). General LaPorte insisted that he was justified in issuing orders confining United States citizens who were civilian employees to their "off-installation" quarters during their non-duty hours for up to eight hours per day, seven days per week. Plaintiffs maintained

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that those restrictions amounted to an order to remain in "standby" status as specified by 5 C.F.R. §550.112(k)(1), and therefore constituted compensable overtime work. Defendant did not oppose Plaintiffs' request for an enlargement of 32 days to engage in an extensive inquiry with potential witnesses in Korea in order to respond to General LaPorte's factual recitations. Thereafter, Plaintiffs' counsel filed a detailed Affidavit under RCFC 56(f) explaining that in the performance of his professional responsibility to his clients, he would be unable to present a competent defense to the Government's summary judgment motion unless Plaintiffs were permitted to conduct discovery of essential facts in the exclusive possession of the Defendant with respect to the "state of readiness" required of the civilian employees during the curfew hours. "Readiness" is a critical element of proof under the overtime pay statute and OPM's supporting regulations. Moreover, Plaintiffs sought to avail themselves of the

fundamental right of American jurisprudence to cross-examine the Government's witness-inchief who had presented testimony to the Court by sworn Declaration. Plaintiffs sought to depose General LaPorte in order to refute his factual assertions that were material to the resolution of Defendant's motion for summary judgment. Plaintiffs pursued the prosecution of their case with diligence and timely adherence to the schedule for the submission of comprehensive briefs with respect to the Rule 56(f) Affidavit. Despite overwhelming precedent that Plaintiffs were entitled to some discovery at the very least, the Court ruled that no "additional" discovery would be permitted even though it knew that Plaintiffs had no opportunity whatsoever to conduct any discovery at all. Without the opportunity to test General LaPorte's credibility in the crucible of cross-examination and to conduct essential discovery that is a routine and necessary ingredient of fairness in litigation practice, Plaintiffs faced insurmountable odds in securing justice. The Court's ruling under these
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circumstances afforded Plaintiffs no choice but to reexamine the nature and suitability of the Complaint. Plaintiffs therefore requested that the Court grant their motion for voluntary

dismissal without prejudice. Defendant filed its response electronically on October 3, 2006, arguing that only a dismissal with prejudice was warranted based on the false premise that the case had substantially progressed and that "the time was ripe for resolution" despite the fact that only one motion had been filed and briefed, no discovery was permitted, the Government's witness was shielded from any cross-examination, material evidence was locked behind closed doors 9,000 miles from the courthouse, and that the parties had been engaged in active litigation for a total of only four months since Defendant's motion had been filed. On the very next day, before Plaintiffs would have an opportunity even to reply to Defendant's arguments, the Court summarily prejudged the issue at hand. The Court presented Plaintiffs with an ultimatum that "[i]f plaintiffs do not agree to a dismissal with prejudice, the case will proceed, and plaintiffs must file a responsive brief [to the motion for summary judgment] or risk dismissal with prejudice for failure to obey an order of the court/failure to prosecute pursuant to RCFC 41(b)." The record speaks for itself. Therefore, Plaintiffs respectfully bow to the inevitable and agree to a dismissal of this case with prejudice.

CONCLUSION Litigation in this Court always has been premised on each party's opportunity to prove its case aided by the Court's extensive discovery rules that are the bedrock of American jurisprudence. Plaintiffs have demonstrated that there are a myriad of material facts that must be explored not only to prove Plaintiffs' affirmative allegations, but also to disprove Defendant's
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reliance on General LaPorte's Declaration as an affirmative defense. Plaintiffs' counsel has practiced law for 48 years, and has been an active practitioner in this Court for over 15 years. A noteworthy aspect of practice in this Court has been a high standard of professionalism, nurtured upon a premise of mutual respect between members of the Bench and the Bar. With some considerable success over the years, counsel has consistently advocated on behalf of ordinary citizens to obtain a fair remedy to correct perceived bureaucratic power in derogation of statutory rights. The rush to judgment in this case, particularly at the expense of denying citizens the opportunity to prove their case against a more powerful litigant that had exclusive possession of the evidence, has been stunning. Respectfully submitted, October 26, 2006 s/Ira M. Lechner Ira M. Lechner 19811 4th Place Escondido, CA 92029 (858) 864-2258 Attorney for Plaintiffs

OF COUNSEL: Susan Tsui Grundsmann General Counsel NATIONAL FEDERATION OF FEDERAL EMPLOYEES 1016 16th Street, N.W. Washington, D.C. 20036 (202) 862-4457 Fax (202) 862-4432 Jeffrey R. Krinsk Mark A. Golovach FINKELSTEIN & KRINSK 501 West Broadway, Suite 1250 San Diego, CA 92101-3593 (619) 238-1333 Fax (619) 238-5425
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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 26th day of October, 2006, a copy of the foregoing "PLAINTIFFS' MOTION FOR LEAVE TO FILE OUT OF TIME THEIR REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO DISMISS THE COMPLAINT WITHOUT PREJUDICE" was filed electronically in the United States Court of Federal Claims. 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 electronic filing system.

s/Sharon A. Jones Sharon A. Jones

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