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. WEEKS MARINE, INC. Intervenor Plaintiff v. THE UNITED STATES Defendant. § § § § § § § § § § § § § § §

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

PLAINTIFFS' UNOPPOSED MOTION TO ENLARGE DEADLINE FOR FILING PLAINTIFFS', DEFENDANT'S AND INTERVENOR PLAINTIFF'S EXPERT REPORTS 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 Filing Plaintiffs', Defendant's and Intervenor Plaintiff's Expert Reports and would respectfully show unto the Court the following: Plaintiffs ask the Court to grant additional time in which to file Plaintiffs', Defendant's and Intervenor Plaintiff's Expert Reports, as authorized by Rule of United States Court of Federal Claims 6(b). ["RCFC 6(b)"].

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I. INTRODUCTION 1. A status conference was held in this case on January 24, 2006 before this Honorable

Court in which Plaintiffs, Fisherman's Harvest, Inc., et al, Intervenor Plaintiff, Weeks Marine, Inc. ("Weeks"), and Defendant, The United States ("the U.S."), attended and participated by telephone. 2. Pursuant to the status conference held on January 24, 2006, the Court entered its order

that the parties adhere to the following discovery schedule: Plaintiffs' Expert Reports shall be due on or before April 14, 2006; the U.S.' and Weeks' Expert Reports shall be due on or before May 15, 2006; the U.S.' and Weeks' Experts shall be available for deposition on or before June 12, 2006; All Discovery (Fact & Expert) shall end on or before August 15, 2006; and the tentative date for the beginning of trial is October 16, 2006. 3. (A) On or about March 3, 2006, and prior to the issuance of the notices of deposition

for witnesses Carolyn Murphy and James Few, counsel for the U.S. agreed to produce requested deponents, Murphy and Few. Thereafter, on March 8, 2006, Plaintiffs' noticed the depositions of Murphy and Few pursuant to the agreement between Plaintiffs and the U.S. as to when and where the depositions would occur. (B) On or about March 3, 2006, Plaintiffs requested that Weeks provide J. M. Fail and

Keith Latiolais for depositions during the week of April 3, 2006. On March 16, 2006, after making several attempts to set these depositions and being unable to secure any meaningful response, Plaintiffs noticed the depositions of Fail and Latiolais for April 3 and 4, 2006. 4. On March 17, 2006, Weeks filed its Motion for Protective Order to Prohibit Taking of

Depositions of Mr. J. M. Fail and Mr. Keith Latiolais. [Doc. 45]. On March 21, 2006, the U.S.

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filed its Motion for Protective Order to prevent the taking of the depositions of James Few and Carolyn Murphy. [Doc. 46]. 5. In an effort to conform to the Court's adopted scheduling order, and to move this case

towards the trial setting of October 16, 2006, Plaintiffs filed their responses to both Weeks' and the U.S.' motions for protective order [Docs. 47 and 48, respectively], seeking the Court to either uphold the scheduled depositions, or in the alternative, amend the scheduling order to allow Plaintiffs additional time in which to file their expert reports. 6. 7. Plaintiffs' Expert Reports shall be filed with the Court on or before April 14, 2006. After their receipt and review of the Court's Order dated March 27, 2006 [Doc. 52],

which states that the U.S.' and Weeks' motions for protective orders are granted and the depositions are to be rescheduled, Plaintiffs filed this request for an extension as soon as they became aware of the need for additional time and before the deadline. II. ARGUMENT 8. 6(b). 9. Plaintiffs request additional time to file their expert reports because due to Plaintiffs' The Court may grant a motion for an enlargement of time for "cause shown." RCFC

requested depositions pending rescheduling, Plaintiffs will require additional time in order to take the depositions requested before the deadline. 10. Plaintiffs ask the Court to enlarge the deadline regarding expert reports for Plaintiffs,

Defendant and Intervenor Plaintiff until further order of this Court. 11. Plaintiffs' request for additional time is for cause shown, as stated in this motion, not to

delay these proceedings. See RCFC 6(b). III.

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CONCLUSION 12. On January 25, 2006, this Honorable Court entered a scheduling order outlining date

and deadlines for all parties, including a trial date of October 16, 2006. Plaintiffs noticed four (4) depositions in an effort to timely comply with the scheduling order. Weeks' and the U.S. filed a Motion for Protective Order, respectively, with this Court in order to postpone and/or reschedule the depositions requested by Plaintiffs. Plaintiffs filed their response to said motions asking the Court uphold the depositions, or in the alternative, extend the deadline in which Plaintiffs' Expert Reports shall be filed, allowing more time for the requested depositions to go forward. The Court ordered that the requested depositions be rescheduled at later dates, but did not specify if it would allow for an extension of time for Plaintiffs' Expert Reports to be filed. For these reasons, Plaintiffs ask the Court to enlarge the time to file Plaintiffs', Defendant's and Intervenor Plaintiff's Expert Reports 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', Defendant's and Intervenor Plaintiff's expert reports until further order of this Court, with all other matters on the scheduling order of this Honorable Court remaining as stated 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 Southern District of Texas Bar No. 83425 Texas State Bar No. 02217500 LAW OFFICE OF DAVID E. BERNSEN, P.C. Post Office Box 822 Beaumont, Texas 77704 (409) 832-1957
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(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, 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 Plaintiff, Weeks Marine, Inc., on Monday, March 27th, 2006, to determine if either would be opposed to the enlargement of time requested for the filing of Plaintiffs', Defendant's and Intervenor Plaintiff's Expert Reports. None were opposed.

CERTIFICATE OF SERVICE

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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 28th day of March, 2006.

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 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
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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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