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

Case 1:05-cv-00840-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FISHERMAN'S HARVEST, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant, v. WEEKS MARINE, INC., Intervenor-Defendant. § § § § § § § § § § § § § § §

NO. 05 -840 C and NO. 05-1044 C (CONSOLIDATED) (Chief Judge Damich)

PLAINTIFFS' UNOPPOSED MOTION TO ENLARGE DEADLINE FOR DISCLOSING PLAINTIFFS' EXPERT WITNESSES Come now, FISHERMAN'S HARVEST, INC., C. JOE NELSON, JR., DORIS MAE NELSON, VANESSA JO NELSON VALLEJO, VICKIE JO NELSON SALAZAR, CHILDRESS SEAFOOD, INC., W. F. CHILDRESS and ALTON LEE KELLY, Plaintiffs in the above-entitled and numbered cause, and make and file this Plaintiffs' Unopposed Motion to Enlarge Deadline for Disclosing Plaintiffs' Expert Witnesses and would respectfully show unto the Court the following: Plaintiffs ask the Court to grant additional time in which to file Plaintiffs' Expert Witness Disclosures, as authorized by Rule of United States Court of Federal Claims 6(b). ["RCFC 6(b)"].

I.

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INTRODUCTION 1. A scheduling order was entered on January 8, 2007 by Chief Judge Edward J. Damich,

which set out the following discovery schedule: Plaintiffs' Expert Witness Disclosure by March 1, 2007; Defendant's and Weeks Marine's Expert Witness Disclosure by April 2, 2007. 2. (A) Beginning on February 12 through February 14, 2007, the depositions of Carolyn

Murphy and James Few were conducted in Galveston, Texas. (B) The plaintiffs' depositions begun on February 21, 2007 and were to continue

through February 23, 2007 in Houston, Texas. However, during his deposition on February 22, 2007, plaintiff, C. Joe Nelson, Jr., suffered a severe diabetic attack and was subsequently hospitalized, requiring the termination of his deposition. (C) The depositions of J. M. Fail and Keith Latiolais, who are being produced on

behalf of Intervenor-Defendant, were to be conducted on March 13-14, 2007 in Houston, Texas. Due to Mr. Nelson's poor state of health, counsel agreed to postpone all depositions, with the Weeks Marine employee's depositions to be re-noticed for sometime in April, 2007. 3. 4. Plaintiffs' Expert Witness Disclosure shall be filed with the Court by March 1, 2007. In light of C. Joe Nelson, Jr.'s poor state of health at present, his deposition, as well as all In turn, the

of the remaining plaintiff's depositions, must be postponed and re-noticed.

depositions of the Weeks Marine employees must be re-noticed to take place after the completion of all plaintiff depositions, as agreed upon by counsel for each. Plaintiffs filed this request for an extension as soon as they became aware of the need for additional time and before the deadline.

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II. ARGUMENT 5. 6(b). 6. Plaintiffs request additional time to disclose their expert witnesses due to the pending The Court may grant a motion for an enlargement of time for "cause shown." RCFC

depositions of the remaining plaintiffs and the witnesses being produced on behalf of IntervenorDefendant, Weeks Marine, Inc. Plaintiffs will require additional time in order to take the depositions requested before the March 1, 2007 deadline. 7. Plaintiffs' counsel has conferred with counsel for Defendant, The United States, and

counsel for Intervenor-Defendant, Weeks Marine, Inc., and neither is opposed to this motion for enlargement. 8. Plaintiffs ask the Court to enlarge the deadline regarding Plaintiffs' expert witness

disclosures for thirty (30) days after the completion of the last Weeks' Marine employee. 9. Plaintiffs' request for additional time is for cause shown, as stated in this motion, not to

delay these proceedings. See RCFC 6(b). III. CONCLUSION 10. On January 8, 2007, this Honorable Court entered a scheduling order outlining

discovery dates and deadlines for all parties. Plaintiffs noticed four (4) depositions in an effort to move forward with discovery. Weeks Marine then noticed the Plaintiffs' depositions. The first two (2) plaintiff depositions have been conducted, but were cut short due to an illness suffered by plaintiff, C. Joe Nelson, Jr. The depositions of the Weeks' employees', which were originally scheduled for March 13 and 14, 2007, must be re-noticed to take place after the

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completion of all plaintiff depositions. For these reasons, Plaintiffs ask the Court to enlarge the time to file Plaintiffs' Expert Witness Disclosures until such further order of this Court. WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Fisherman's Harvest, Inc., C. Joe Nelson, Jr., Doris Mae Nelson, Vanessa Jo Nelson Vallejo, Vickie Jo Nelson Salazar, W. F. Childress, Childress Seafood, Inc. and Alton Lee Kelly, pray for the Court to enter an order to enlarge the time to file Plaintiffs' expert witness disclosures until further order of this Court, and for such other and further relief that may be awarded at law or in equity. Respectfully submitted, By:

s/ David E. Bernsen
DAVID E. BERNSEN Texas State Bar No. 02217500 LAW OFFICE OF DAVID E. BERNSEN, P.C. Post Office Box 822 Beaumont, Texas 77704 (409) 832-1957 (409) 832-2211 [FACSIMILE] [email protected] ATTORNEY FOR PLAINTIFFS FISHERMAN'S HARVEST, INC., C. JOE NELSON, JR., DORIS MAE NELSON, VANESSA JO NELSON VALLEJO AND VICKIE JO NELSON SALAZAR AND A. MARK FAGGARD Texas State Bar No. 06772000 A. MARK FAGGARD, P.C. 550 Fannin Street, Suite 1141 Beaumont, Texas 77701 (409) 835-4300 (409) 835-4335 [FACSIMILE] [email protected] OF COUNSEL TO ATTORNEY FOR PLAINTIFFS FISHERMAN'S HARVEST,
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INC., C. JOE NELSON, JR., DORIS MAE NELSON, VANESSA JO NELSON VALLEJO AND VICKIE JO NELSON SALAZAR

CERTIFICATE OF CONFERENCE Prior to the filing of the above and foregoing document, Plaintiffs' counsel conferred with counsel for the Defendant, The United States, and with counsel for Intervenor-Defendant, Weeks Marine, Inc., on Friday, February 16, 2006, to determine if either would be opposed to the enlargement of time requested for the filing of Plaintiffs' Expert Witness Disclosures. None were opposed.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing instrument has been filed electronically in accordance with the rules of this Court on this the 26th day of February, 2007.

s/ David E. Bernsen
DAVID E. BERNSEN E-mail: [email protected]

David F. D'Alessandris ATTORNEY FOR DEFENDANT THE UNITED STATES Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 TEL: (202) 307-1011 FAX: (202) 514-8624 P. Alex Petty Ana-Valli Gordon
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OF COUNSEL TO ATTORNEY FOR DEFENDANT THE UNITED STATES Assistant District Counsel United States Army Corps of Engineers Galveston District 2000 Fort Point Road Galveston, Texas 77550 Kenneth G. Engerrand Allen D. Hemphill ATTORNEYS FOR INTERVENOR PLAINTIFF WEEKS MARINE, INC. Brown Sims, P.C. 1177 West Loop South, Tenth Floor Houston, Texas 77027-9007 Phone: (713) 629-1580 Fax: (713) 629-5027 Paul O'Finan ATTORNEY FOR PLAINTIFFS CHILDRESS SEAFOOD, INC., W. F. CHILDRESS AND ALTON LEE KELLY 9597 Jones Road, #317 Houston, Texas 77065 Phone: (713) 202-1776 Fax: (713) 683-1783 E-Mail: [email protected] Shannon T. Nash OF COUNSEL TO ATTORNEY FOR PLAINTIFFS CHILDRESS SEAFOOD, INC., W. F. CHILDRESS AND ALTON LEE KELLY Tolleson & Nash 26510 Keith Street Spring, Texas 77373 TEL: (281) 350-3900 FAX: (281) 350-9977

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