Free Motion for Extension of Time to Complete Discovery - District Court of Federal Claims - federal

Case 1:05-cv-01006-VJW

Document 41

Filed 09/12/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FOREST GLEN PROPERTIES, LLC, et al., Plaintiffs, v. UNITED STATES, Defendant.

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No. 05-1006C (Judge Wolski)

DEFENDANTS UNOPPOSED MOTION FOR LIMITED ENLARGEMENT OF TIME TO CONDUCT DISCOVERY AND FILE JOINT STATUS REPORT Pursuant to Rule 6(b)(1) and 6.1 of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests a 74-day enlargement of time, to and including November 28, 2008, to conduct discovery of the plaintiffs and file a Joint Status Report. Defendant's period of discovery of the recently added plaintiffs, pursuant to this Court's order dated June 19, 2008, is currently set to expire on September 15, 2008, and a Joint Status Report is due on or by September 19, 2008. This is defendant=s first request for an enlargement for this purpose. Defendant has consulted with counsel for plaintiff and counsel for plaintiff has represented that plaintiff does not oppose this request for an enlargement of time. On June 19, 2008, this Court granted plaintiff leave to add Mark Marein and Steven L. Bradley (the "Receiver Plaintiffs") as additional plaintiffs in this matter. In the order permitting the addition of Mr. Marein and Mr. Bradley as plaintiffs, this Court allowed defendant additional time in which to conduct discovery of the plaintiffs.

Case 1:05-cv-01006-VJW

Document 41

Filed 09/12/2008

Page 2 of 3

Thereafter, defendant diligently pursued discovery of the added plaintiffs by propounding two separate requests for the production of documents, and scheduling the depositions of the Receiver Plaintiffs. Because the Receiver Plaintiffs refused to testify claiming they had not received notice of the depositions from plaintiffs' counsel (plaintiffs' counsel stated on the record that he had sent the Receiver Plaintiffs notice via ordinary mail), and cannot appear for depositions during the remaining period allotted for discovery, defendant is required to file this request for an enlargement of time. Specifically, defendant properly scheduled and noticed the depositions of Mr. Marein and Mr. Bradley for August 27, 2008, in Cleveland, Ohio. The undersigned counsel for defendant then traveled to Cleveland, Ohio and appeared at the date and time set for the depositions; however, the plaintiffs refused to testify claiming they had not received notice of the depositions from plaintiffs counsel. A record of the Receiver Plaintiffs refusal to testify was made, and Plaintiffs' counsel indicated on the record that he had forwarded notice of the depositions to the Receiver Plaintiffs via ordinary mail, and such letter had not been returned. Exhibit 1. Thereafter, and on Friday September 5, 2008, counsel for plaintiffs advised defendant that Mr. Marien and Mr. Bradley will not be available for depositions before October 7, 2008. The additional time to conduct discovery of the Receiver Plaintiffs is required as the result of those plaintiffs' refusal to testify for their properly noticed and scheduled depositions. Further, defendant requires sufficient time following the depositions to follow-up on any information uncovered during the depositions of the Receiver Plaintiffs.

Case 1:05-cv-01006-VJW

Document 41

Filed 09/12/2008

Page 3 of 3

For these reasons, defendant respectfully requests that the Court grant this motion for enlargement of time of 74 days, to and including November 28, 2008, within which to conduct fact discovery of the Plaintiffs and file a Joint Status Report.

Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director

/s Brian M. Simkin BRIAN M. SIMKIN Assistant Director /s Scott A. MacGriff SCOTT A. MACGRIFF Trial Attorney, Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Telephone: 202-305-3689 [email protected] Dated: September 12, 2008 Attorneys for Defendant