Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:02-cv-00466-LB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SUNOCO, INC. and PUERTO RICO SUN OIL COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 02-466C (Chief Judge Damich)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Pursuant to RCFC 6(b), defendant respectfully requests an enlargement of time of 14 days, from February 24, 2006 to and including March 10, 2006, within which to file our reply to plaintiffs' opposition to our motion for summary judgment, and our response to plaintiffs' proposed findings of uncontroverted fact and RCFC 56(f) motion. This is our second enlargement request for this purpose.1 Plaintiffs oppose this request to the extent that it exceeds three days. This is the first opportunity we have had to respond to plaintiffs' response to our motion to dismiss. Plaintiffs have responded with an 78-page brief, a motion pursuant to RCFC 56(f), proposed findings of fact, and a voluminous appendix. Because this is, in essence, the first statement of plaintiffs' case, beyond the general, non-specific allegations contained in the complaint, our reply brief will be the point at which the analysis of plaintiffs' ultimate case must occur. In doing so, it is likely we will seek to exceed the page limit and consult with witnesses concerning what has been said of them in plaintiffs' papers. In short, this will be no perfunctory

We requested an earlier enlargement until February 24. The Court, however, explained that plaintiffs' brief had not been filed (it was formally filed on February 10) and established a filing date of February 24.

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reply. It will require investigation, new research, and original and extensive drafting. Defendant already has filed one such brief under an extremely restrictive deadline. However, that brief will not be sufficient to respond to the Sunoco complaint, which includes additional causes of action, a longer brief, and a unique appendix. Moreover, as detailed below, defendant's counsel schedule would not permit even a perfunctory conversion of the brief from another case. The crowding of defendant's counsel's was occasioned by the unexpectedly busy schedule described in our last motion, and illness that followed it (including a fever of approximately 103 degrees, which resulted in his taking four days of sick leave, during which he accomplished very little work), and later-added deadlines, some the result of enlargements, occasioned by these and other delays. Thus, for example, since the filing of our last motion, defendant's counsel obtained enlargements in four other jet fuel cases, and three new deadlines were added to the schedule. These include receiving an order on February 9, that the Government respond to plaintiff's RCFC 56(f) motion in Calcasieu v. United States, No. 02-1219C, by February 13 (the issue raised in the motion is among, if not the, central issue raised in plaintiffs' brief in this case). Because defendant's counsel contracted bronchitis, that deadline was extended to February 17. Other deadlines instituted included: conferences in Navajo v. United States and LaGloria v. United States (held February 10); brief in Valero v. United States, No. 03-1916C (February 10, due to enlargement); a briefing concerning an issue of law in Christofferson v. United States (moved from February 14, then to February 17; the matter was finally negotiated after briefings were completed but not filed). We also added to our schedule the filing of several very lengthy enlargement motions in other jet fuel cases, which consumed hours, because they are being

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opposed, including one that sought but one additional week. As a result of these matters, defendant's counsel's schedule, since February 10, the point at which we would have hoped to be concentrating on this case, included these deadlines: February 15 - Reply Brief in Flint Hills v. United States, No. 02-462C (enlargement motion filed and just granted to March 8). February 17 - Response to RCFC 56(f) motion. Calcasieu v. United States, No. 021219C (Fed. Cl.) (Once enlarged by 4 days). February 17 - Later extended to 2/21 - Memorandum concerning parties' position regarding question of law affecting questionnaires to be distributed to 8,000 plaintiffs in FLSA overtime lawsuit. Christofferson v. United States, No. 01-495C (Fed. Cl.) (The parties resolved the matter after the filing was prepared). February 22 - Reply brief, Response to Plaintiff's RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Hermes v. United States, No. 02-1460C (Fed. Cl.) (Once enlarged by 14 days). February 22 - Reply brief, Response to Plaintiffs' RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. El Paso v. United States, No. 02-1094C (Fed. Cl.) (Once enlarged by 14 days). Enlargement motion filed and granted to extend the filing to February 27. February 23 - Reply brief, Response to Plaintiff's RCFC 56(f) motion, Response to Plaintiff's Proposed Findings of Uncontroverted Fact. Calcasieu v. United States, No. 02-1219C (Fed. Cl.). Enlargement motion pending. February 24 - Reply brief, Response to Plaintiffs' RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Sunoco v. United States, No. 02-466C (Fed. Cl.) (Once enlarged by 14 days). February 24 - Motion for Summary Judgment. Proposed Findings of Fact. Gary Williams v. United States, No. 03-2106C (Fed. Cl.). Preparing enlargement motion of one week to March 3. February 27 - Reply brief, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. El Paso v. United States, No. 02-1094C (Fed. Cl.) (Twice enlarged by 19 days). March 3 Motion for Summary Judgment. Proposed Findings of Fact. Tesoro v. -3-

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United States, No. 02-704C (Fed. Cl.). March 8 Reply brief, Response to Plaintiff's RCFC 56(f) motion, Response to Plaintiff's Proposed Findings of Uncontroverted Fact. Flint Hills v. United States, No. 02-462C (Fed. Cl.) (Once enlarged by 21 days). Reply brief; Response to Plaintiffs' RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Conoco Phillips v. United States, No. 02-1367C (Fed. Cl.). Mediation Statement Due in DOJ issue statement due in VT Halter v. United States, No. 05-369C. Mediation response statement due in VT Halter.

March 10 -

March 14 -

March 21 -

March 28-30- Mediation in Warren, Michigan in VT Halter. April 2-4 Settlement Conference in Phylway v. United States, No. 05-215C (Fed. Cir.)

Despite this schedule, defendant's counsel has consistently accelerated the Government's efforts. We request 14 days, because our experience on these cases makes it clear that an effort of this magnitude will not be done to standard within any shorter time. That is particularly so, because our nearest deadline is March 8; and other matters must be attended to meet the schedule set out above, including writing a detailed settlement memorandum in Rocky Mountain, for the Authorized Representative of the Attorney General; preparing an outline of an ADR proposal in V.T. Halter, so that the parties can exchange position papers and necessary documents in time to meet in Michigan in mid-March; obtaining an expert in Phylway v. United States, No. 05-215C, so that the expert can be sufficiently prepared to participate in a settlement discussion in the first week of April or depositions in the third week of April. For these reasons, defendant respectfully requests an enlargement of time of 14 days, from February 24, 2006, to and including March 10, 2006, within which to file our reply to

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plaintiffs' opposition to our motion for summary judgment, and our response to plaintiffs' proposed findings of uncontroverted fact and RCFC 56(f) motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director

OF COUNSEL: DONALD S. TRACY Trial Attorney Defense Supply Center Richmond Richmond, VA 23297

HOWARD M. KAUFER Assistant Counsel Office of Counsel Defense Energy Support Center Ft. Belvoir, VA

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director Commercial Litigation Branch Civil Division Attn: Classification Unit 1100 L Street, N.W., 8th Floor Department of Justice Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988

Attorneys for Defendant February 24, 2006

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CERTIFICATE OF FILING I hereby certify that on February 24, 2006, a copy of the foregoing document 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/Steven J. Gillingham