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

Case 1:05-cv-01043-VJW

Document 49

Filed 02/15/2007

Page 1 of 6

No. 05-1043C (JUDGE WOLSKI)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS JORGE A. DELPIN APONTE, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant. DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SUR-REPLY

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director 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

JEFFREY S. PEASE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8TH Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 307-0292 Fax: (202) 514-8624

Case 1:05-cv-01043-VJW

Document 49

Filed 02/15/2007

Page 2 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

JORGE A. DELPIN APONTE, ET AL. Plaintiffs, v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) )

No. 05-1043C (Judge Wolski)

DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SUR-REPLY Defendant submits this Memorandum in Opposition to Plaintiffs' Motion for Leave to File Sur-Reply. On August 10, 2006, the United States moved for partial dismissal and summary judgment of plaintiffs' complaint. Plaintiffs' filed their opposition to defendant's motion on December 14, 2006. On January 29, 2007, defendant filed a reply to plaintiffs' opposition. Now, having received the United States' reply, plaintiffs ask the Court to allow them to file a sur-reply setting forth additional arguments. Under the Rules of this Court, plaintiffs have no right to file a sur-reply. Contrary to established procedure, plaintiffs improperly seek to introduce, through their proposed sur-reply, new facts and arguments that they chose not to assert in their initial Memorandum in Opposition to Defendant's Partial Motion to Dismiss and Motion for Summary Judgment. Moreover, plaintiffs have not demonstrated a need for the Court to grant leave from its rules. Therefore, plaintiffs' motion for leave to file a sur-reply should be denied. In the alternative, the

2

Case 1:05-cv-01043-VJW

Document 49

Filed 02/15/2007

Page 3 of 6

Government should be given an opportunity to respond to any sur-reply filed by plaintiffs. DISCUSSION 1. The Court Should Deny Plaintiff's Request for a Sur-Reply

The Rules of the Court of Federal Claims ("RCFC") do not contemplate the filing of a sur-reply. See RCFC 5.2 (authorizing only a dispositive motion, a response to the motion, and a reply brief by the moving party). As the RCFC do not contemplate the filing of a sur-reply, it is plaintiffs' burden to demonstrate that the Court should take leave from the requirements of its rules and allow the filing of such a brief. Plaintiffs have not met this burden. Under the RCFC, the last written brief is supplied by the moving party, here, the defendant. The purpose of a reply brief is to address arguments raised for the first time in the non-moving party's response brief. In this matter, we did exactly that -- we responded to additional arguments raised by plaintiffs in their Memorandum in Opposition. We did not raise new arguments in our reply and, in fact, plaintiffs do not allege that the reply states any new arguments. The Court now has before it a complete set of the parties' legal briefs, appendices,

and proposed findings of fact. The issues in this action and the parties' positions have been fully expressed. Further briefing is unnecessary. Plaintiffs' stated reason for requesting leave to file a sur-reply is to "clarify the record" and to correct alleged misstatements of fact in the reply. See Motion for Sur-Reply at 1. These assertions, however, are not sufficient to warrant a deviation from Court rules. Plaintiffs had an opportunity to state what they believed to be the relevant facts and to "clarify the record" in their Memorandum in Opposition. Plaintiffs failed to do so and, in their motion, entirely fail to state any reason why they could not have brought forth these facts in their response. Further briefing is therefore unnecessary and the Court should deny plaintiffs' motion for leave.

3

Case 1:05-cv-01043-VJW

Document 49

Filed 02/15/2007

Page 4 of 6

If the Court grants plaintiffs' motion for leave to file a sur-reply, however, the Government respectfully requests that it be permitted to submit a response to the sur-reply and that the Court limit the issues upon which plaintiffs may submit additional briefing. Fairness dictates that the Government be allowed to state its position with regard to issues and facts raised in the additional briefing, and allowing the Government to respond would preserve the RCFC's approach of requiring that the last written brief be submitted by the moving party. We therefore respectfully request that the Government be permitted to file a response 14 days after the surreply. CONCLUSION Plaintiffs have not demonstrated a need for this Court to grant leave to file a sur-reply. The Government has not raised new arguments in its reply, and plaintiffs had ample opportunity to state the facts they believe are relevant in their response to the Government's motion. Additional briefing at this stage would not serve the interest of justice and, in fact, would undermine the Court's and the parties' interest in judicial economy. For these reasons, the United States respectfully requests that plaintiffs' motion for leave to file a sur-reply be denied. In the alternative, if the Court authorizes the filing of a sur-reply, the United States respectfully requests that the Court limit the issues to be addressed and provide the United States seven days to file a response to plaintiffs' sur-reply.

4

Case 1:05-cv-01043-VJW

Document 49

Filed 02/15/2007

Page 5 of 6

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director /s/ Mark A. Melnick by Todd M. Hughes MARK A. MELNICK Assistant Director /s/ Jeffrey S. Pease by Mark T. Pittman JEFFREY S. PEASE Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8TH Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 307-0292 Fax: (202) 514-8624

Of Counsel: DANIEL GARRY Attorney Law Department United States Postal Service 475 L'Enfant Plaza, SW Washington, D.C. 20260

Dated: February 15, 2007

5

Case 1:05-cv-01043-VJW

Document 49

Filed 02/15/2007

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on this 15th day of February, 2007, the foregoing Defendant's Memorandum in Opposition to Plaintiffs' Motion for Leave to File Sur-Reply was filed electronically. 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 system.

/s/ Mark T. Pittman MARK T. PITTMAN

6