Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-01043-VJW

Document 98

Filed 05/02/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) ) JORGE A. DELPIN-APONTE, et al., ) ) Plaintiffs, ) ) No. 05-1043C v. ) (Judge Wolski) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________)

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO EXTEND THE PERIOD FOR TAKING A DEPOSITION Pursuant to Rule 7.2 of the Rules of this Court ("RCFC"), defendant, the United States, respectfully submits the response in opposition to plaintiffs' motion for leave to serve additional discovery requests upon the Government. Plaintiffs' motion should be denied for several reasons. 1. Plaintiffs did not comply with the Court's January 23, 2008 order, or the parties' March 28, 2008 joint status report ("JSR"). In the January 23, 2008 order, the Court provided: If the plaintiffs feel that additional discovery is necessary, their counsel shall promptly discuss this matter with government counsel to determine if the government would consent to the additional discovery. The plaintiffs shall only file a motion for leave with the Court if this consent has been sought and denied. Jan. 23, 2008 Order at 1. The parties similarly provided in their March 28, 2008 JSR: Plaintiffs anticipate seeking leave of the Court to obtain additional discovery, but have not yet determined the scope of that discovery request. As indicated in the Court's order dated January 23, 2008, plaintiffs will promptly discuss this matter with the Government once they have determined the requested scope of additional discovery, to determine if the Government would consent to additional discovery. If the Government opposes that request,

Case 1:05-cv-01043-VJW

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plaintiffs will file their motion for leave on or before April 16, 2008. JSR March 28, 2008 at 1. Plaintiffs failed to comply with the Court's order and the JSR because counsel for plaintiffs failed to consult with Government counsel regarding the proposed discovery request. Plaintiffs' counsel did not send a draft of the discovery request, or even discuss with Government counsel the nature of the proposed requests prior to filing. Assuming that the purpose in requiring consultations between the parties was to increase the likelihood that any dispute regarding further discovery could be resolved by the parties, or that the scope of the dispute may be narrowed prior to intervention by the Court, plaintiffs' failure to comply with the Court's order and the JSR has imposed a burden upon the Government and the Court that perhaps could have been avoided, or at least minimized. Based upon plaintiffs' failure to comply with the order and the JSR alone, plaintiffs' motion should be denied. 2. Plaintiffs fail to demonstrate that the requested documents are within the scope of the limited discovery permitted by the Court based upon plaintiffs' opposition to our summary judgment motion pursuant to Rule 56(f). More than one year ago, the Government filed its motion for summary judgment. In response, plaintiffs contended that, pursuant to Rule 56(f), additional discovery was necessary to understand better the United States Postal Service's ("USPS's") formula for calculating overtime pay pursuant to the Fair Labor Standards Act with respect to plaintiffs. See Pl. Resp. Br. at 9 (stating that plaintiffs' expert is "unable to understand or duplicate the USPS's claim that [its] formula is in compliance with the McQuigg formula."); see also RCFC 56(f) (stating that the court may refuse the application for judgment or may order

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Case 1:05-cv-01043-VJW

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a continuance when the party opposing summary judgment "cannot for reasons stated present by affidavit facts essential to justify the party's opposition"). Following oral argument upon the Government's partial motion to dismiss and motion for summary judgment, the Court issued an order permitting limited discovery: Plaintiffs shall be given the opportunity to conduct limited discovery relating to the formula used by the United States Postal Service ("USPS") to calculate overtime and other pay and the application of that formula to determine the pay received by plaintiffs. . . . Once this limited discovery relating to the compensation formula is completed, defendant may renew its motion for summary judgment. June 12, 2007 Order at 1 (emphasis added). In their motion for leave to take additional discovery, plaintiffs fail to explain how the discovery requests relate to the limited scope of discovery permitted by the Court. Indeed, plaintiffs' motion says very little ­ it vaguely states that the requested discovery "is pertinent to the matters subject of the deposition [of Jo Ann Mitchell] and of the current issues pending before this" Court. Pl. Mot. for Leave at 1. Plaintiffs' vague assertion that these documents are relevant, without explaining why plaintiffs must obtain them prior to further summary judgment proceedings, is facially deficient.1 3. Plaintiffs' own filing demonstrates that they do not need additional discovery, and that, without further delay in this litigation, the Court should establish a schedule for further

Plaintiffs' current motion appears to be part of a pattern or practice of filing motions providing little or no explanation of the grounds for the motion, forcing the Government to respond based upon minimal detail and based upon guesses as to plaintiffs' intended arguments. This imposes unnecessary burdens upon the Government, may lead to unnecessary involvement by the Court, and does not comply with Rule 7(b) of the Rules of this Court. See RCFC 7(b) (requiring motions to "state with particularity the grounds therefor") (emphasis added). -3-

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Case 1:05-cv-01043-VJW

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summary judgment proceedings. In their motion, plaintiffs state that Ms. Mitchell's deposition "made clear, with mathematical certainty, that Defendant is not paying overtime in accordance with the FLSA." Pl. Mot. at 1-2 (emphasis added). If plaintiffs can prove with mathematical certainty based upon the deposition that the Government is not paying in accordance with the FLSA, then plaintiffs do not need additional discovery prior to renewal of the Government's motion for summary judgment. Plaintiffs' motion essentially concedes that plaintiffs have all of the information that they need to determine whether they are being paid in accordance with the FLSA, and do not need additional discovery to respond to the Government's motion for summary judgment.

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Mark A. Melnick MARK A. MELNICK Assistant Director OF COUNSEL: DANIEL GARRY Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260 /s/ Michael Dierberg MICHAEL DIERBERG Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Class. Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Attorneys for defendant

May 2, 2008

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