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

Case 1:05-cv-01043-VJW

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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, opposes plaintiffs' motion to extend the period for taking a deposition prior to further summary judgment proceedings. We oppose this motion because plaintiffs have not demonstrated good cause for the extension, and plaintiffs will not be prejudiced by denying their motion for extension of time. Plaintiffs have not demonstrated good cause for the extension because they were given ample opportunity to take the deposition, permitted by the Court pursuant to RCFC 56(f), and their failure to take this deposition is the result of their own inaction. The parties originally indicated to the Court that the deposition would be completed by August 22, 2007, and the Government acquiesced in extensions of that deadline through November 15, 2007. During that time, plaintiffs' counsel was non-responsive for significant periods, delaying the scheduling of a deposition. Plaintiffs will not be prejudiced by denying their motion for extension of time because, as we demonstrated previously, plaintiffs have all of the facts that they need to respond to the Government's motion for summary judgment. Rule 56 of the Rules of this Court provides that further discovery may be permitted when the opposing party "cannot for reasons stated present by affidavit facts essential to justify the party's opposition." RCFC 56(f). To the extent that it was not apparent from the parties' prior briefing that plaintiffs do not need any further discovery

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to respond to the Government's summary judgment, it should now be clear that plaintiffs will not be prejudiced in any way by denying further discovery. Plaintiffs' stated purposed for the discovery was to better understand the formula used by the United States Postal Service ("USPS") to calculate overtime pay. However, the reality is that plaintiffs' purported expert arrived at a different computation than USPS, and what plaintiffs are lacking is a valid legal theory to accompany their expert's computation. If they had such a valid legal theory, then they could defeat summary judgment without even knowing how USPS calculates overtime pay pursuant to the Fair Labor Standards Act ("FLSA"). That plaintiffs are unable to present any legal theory to support their expert's computation reflects either that: (1) plaintiffs don't understand their own expert's computation; or (2) they are uncertain whether any legal theory would support their own expert's computation. Thus, we respectfully request that the Court deny plaintiff's motion and schedule a status conference in which the parties may establish an appropriate schedule for further summary judgment briefing, if any. BACKGROUND The Government filed its motion for summary judgment in August 2006, and briefing was complete in April 2007. Plaintiffs' primary, if not sole, defense to summary judgment was that plaintiffs do not understand the methodology for calculating overtime pay, and that further discovery was necessary pursuant to RCFC 56(f). See Pl. Sum. Judg. Resp. Br. at 3-12. Following oral argument, the Court issued an order denying the Government's motion for summary judgment without prejudice. June 12, 2007 Order. The Court's order further provides: 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. This discovery may include written or oral depositions of relevant USPS personnel. Counsel for the parties shall confer and submit a Joint Status Report on or by Thursday, June 14, 2007, proposing a schedule for this limited discovery. Once this limited discovery relating to the compensation formula is completed, defendant may renew its motion for summary judgment. Id. -2-

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ARGUMENT I. Plaintiffs' Have Not Demonstrated Good Cause For Extending Further The Time Period For Taking The Deposition Plaintiffs have been given approximately five months to take one deposition pursuant to the Court's order. During this time, the Government acquiesced in two extensions of the time period for taking this deposition. The parties' joint status report ("JSR"), dated June 14, 2007, indicated that plaintiffs intended to hold a deposition pursuant to RCFC 30(b)(6), and that this deposition would be completed by August 22, 2007. The Government acquiesced in an extension of time to take this deposition through November 1, 2007, and the Government later acquiesced in a second extension of time through November 15, 2007. Plaintiffs' failure to take the deposition during this time period is in large part based upon their own inaction. The Government responded to plaintiffs' deposition notice on July 17, 2007, proposing various dates in August that the deposition could be held. Counsel for plaintiffs did not indicate whether any of these dates would be acceptable, or propose alternative dates, until on or about August 9, 2007. The Government proposed new deposition dates the same day, August 9, 2007, but counsel for plaintiffs did not respond with an agreed upon date until on or about August 27, 2007. The parties at that time agreed to hold the deposition on November 1, 2007. In September and October 2007, the parties' JSR relating to the deposition was also delayed due to plaintiffs' lack of communication. See Def. Mot. for Exten. Sept. 19, 2007. Eventually, the Government filed a status report in lieu of a JSR because of plaintiffs' counsel's lack of communication. See Status Rep. Oct. 12, 2007, n. 1. On October 8, 2007, plaintiffs' counsel requested that the November 1, 2007 deposition be rescheduled. More specifically, counsel indicated that he has hearings scheduled in late October, and would like two weeks additional time for "breathing room" from those hearing dates. App. A. Mr. Lampon also indicated that aside from November 27, 2007 and the Thanksgiving holiday weekend, his schedule was "wide open." Id. On October 9, 2007, Government counsel proposed November 15, 2007 as the revised deposition date. App. B. -3-

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More than three weeks later, on November 2, 2007, Mr. Lampon requested that the deposition be held on November 29, 2007. App. C. By the time of Mr. Lampon's request, the Court had already issued an order requiring that the deposition be completed on or before November 15, 2007. In short, the time period for taking the deposition was characterized by three lengthy delays in plaintiffs' counsel responding to proposed deposition dates: (1) July 17, 2007 to August 9, 2007; (2) August 9, 2007 to August 27, 2007; and (3) October 9, 2007 to November 2, 2007. Plaintiffs suggest that at least part of this delay in responding was due to financial constraints. Pl. Mot. at 1. However, this is not an appropriate basis for seeking an extension of time to take a single deposition beyond the five months already provided. Plaintiffs' stated reason for taking the deposition is to understand better the Government's formula for paying plaintiffs. If financial considerations were an impediment to taking an in-person deposition, plaintiffs could have utilized less expensive means of improving their understanding, such as a telephonic deposition or informal discussions with Government counsel. In fact, Government counsel offered to address any questions that plaintiffs might have informally, App. D, but plaintiffs' counsel never attempted to use any informal means to better understand the Government's formula. Plaintiffs also describe in their motion discussions between plaintiffs' counsel and Government counsel regarding possible deposition dates after the November 15, 2007 deadline. Pl. Mot. at 3-4. However, Government counsel explained to plaintiffs' counsel that the Government had not determined that it would consent to a further extension of this deadline, but rather the parties' schedules would be taken into account in determining whether to oppose a further extension.

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II.

Plaintiffs Will Not Be Prejudiced By Denying Their Motion For Extension Of Time To Take The Deposition Plaintiffs will not be prejudiced by denying their motion to extend the time period for

taking the deposition because plaintiffs already have all of the facts that they need to respond to the Government's summary judgment motion. As we demonstrated in our summary judgment briefing, plaintiffs have already been provided 1300 pages of documents, including the formula used by USPS in calculating plaintiffs' pay and step-by-step examples of how USPS calculates pay. See, e.g., App. E, F. The Government met with plaintiffs in 2003 to explain the formula used by USPS, and responded to interrogatory requests by plaintiffs. In any event, the only facts that are essential to responding to the Government's summary judgment motion have always been in plaintiffs' possession (how much they were paid and the hours that they worked), because with that information they can compare the amount that they were paid to the amount that they think that they should have been paid, and respond to our summary judgment motion accordingly. To the extent that it was not apparent from our prior briefs that plaintiffs have the facts necessary to respond to our summary judgment motion, it has only become more clear with time that plaintiffs have all of the facts that they need and what they are lacking is a legal theory to support their suit. In August 2007, plaintiffs filed an amended motion for class certification "defining" the proposed class as "all former and present employees of the US Postal Service in Puerto Rico who are entitled to the rights pleaded in the complaint filed in the captioned case." Pl. Amend. Mot. for Class Cert. at 1. As we demonstrated in our response to that motion, it is apparent that plaintiffs' reason for defining the proposed class in this manner is that plaintiffs don't know what claims they are asserting. Plaintiffs contend in their amended complaint that USPS erroneously pays overtime pursuant to the Fair Labor Standards Act ("FLSA") at 1.5 times the basic rate of pay. Compl. ¶ 16, 18, 20. As the Court correctly suggested to plaintiffs' counsel during oral argument, it

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would have been fairly easy for plaintiffs to determine prior to filing the complaint that this allegation was unsupported by plaintiffs' own pay statements. The complaint also strongly suggests that plaintiffs' claims are limited to the claims asserted, and relief obtained, by the plaintiffs in Frank v. McQuigg, 950 F.2d 590 (9th Cir. 1991), with respect to FLSA overtime pay upon the Territorial Cost of Living Adjustment ("TCOLA"). See Compl ¶ 28-30 (plaintiffs' estoppel claim based upon McQuigg). Yet their expert's computation suggests something different. Plaintiffs' expert's computation is essentially based upon averaging all premiums to basic pay included in calculating the regular rate over only a 40hour period, regardless of whether plaintiffs' received the premium for the first 40 hours of work, the overtime period, equally during all hours of work, or without specification as to particular hours of work. However, plaintiffs have never asserted a legal theory to support such a computation. Plaintiffs are not entitled to further discovery to determine what claims they want to assert, or whether there is a legal theory to support any such claims. Having filed suit contending that their pay has been calculated incorrectly pursuant to the FLSA, plaintiffs ought to have some idea of how they think that their pay should be calculated. If they have such an idea, then all they need to do is to compare what they received with how much they allegedly should have been paid based upon plaintiffs' view of the FLSA. If plaintiffs or plaintiffs' counsel are uncertain what the FLSA requires, the remedy is further study of the statute and regulations, not further discovery pursuant to Rule 56(f). CONCLUSION For these reasons, we respectfully request that the Court deny plaintiffs' motion to extend the time period for taking a deposition. In addition, we respectfully request that the Court deny any further discovery prior to resolution of the Government's summary judgment motion, and schedule a status conference in which the parties may discuss an appropriate schedule for further summary judgment briefing, if any. -6-

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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 December 5, 2007 /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

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