Free Sur-Reply - 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' SUR-REPLY TO DEFENDANT, THE UNITED STATES', REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER 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 their Sur-Reply to Defendant, The United States', Reply to Plaintiffs' Response to Defendant's Motion for Protective Order and would respectfully show unto the Court the following: I. INTRODUCTION 1. Defendant, The United States, filed its Reply on Monday, March 27, 2006. Defendant,

The United States, is incorrect in its statement that it first became aware of potential for further depositions of the USACE's witnesses on March 20, 2006. [Doc. 50]. 2. Defendant, The United States, knew prior to its March 3, 2006 agreement that there was a

possibility that Bertucci Contracting Corporation and Luhr Bros., Inc. might be added as parties

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in this suit by virtue of the January 31, 2006 Intervenor's Motion for Leave to Join as Parties and Join Claims Against Bertucci Contracting Corporation and Luhr Bros. Inc. [Doc. 31-1]. 3. Defendant, The United States, by and through its counsel of record, mailed his March 10,

2006 letter, acknowledging that Plaintiffs had served counsel for Bertucci Contracting Corporation and Luhr Bros., Inc. with copies of the Notices of Depositions of Murphy and Few and stated further, "Accordingly, the United States will not permit Mr. Few and Ms. Murphy to be examined by counsel for Bertucci or Luhr. If the Court issues an order joining Bertucci and Luhr before the date of depositions, we will, of course, permit counsel for the joined parties to participate." (Exhibit "A"). 4. The Federal Circuit did indeed file a notice to show cause why Plaintiffs' appeal should

be dismissed. Plaintiffs have responded to the Court's Notice to Show Cause. (Exhibit "B"). II. ARGUMENT 5. Defendant, The United States', argument as to why it breached its agreement to produce

the witnesses, Murphy and Few, is without merit. First, Defendant, The United States, knew or should have known that this Court could grant Weeks Marine, Inc.'s motion for leave at any time after January 31, 2006. Second, Plaintiffs attempted to include Bertucci & Luhr's counsel in the depositions of Murphy and Few and counsel for Defendant, The United States, refused to allow this and acknowledged that if the Court ruled on the motion for leave before the depositions, that he "would allow Luhr and Bertucci to participate." For Defendant, The United States, to now say it

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was not aware until March 20, 2006, defies logic and the facts. The letter of March 10, 2006 (Exhibit "A") shows the knowledge and intent of Defendant, The United States, as of that date. However, this Court will remember that the issue of joining additional parties was discussed during the status conference on January 24, 2006. Finally, the statement of counsel that the Court of Appeals for the Federal Circuit will not be able to provide guidance is a bit premature and should and does not have any bearing on the issue before this Court. The Plaintiffs filed a Notice of Appeal within the proper time frame and the appeal is proceeding. (Exhibit "C"). Whether or not this appeal is proper, successful and/or unsuccessful has no bearing on whether Defendant, The United States, can unilaterally cancel depositions after schedules of the attorneys, parties (Plaintiffs), court reporters and videographers have been arranged and prepared. To cancel these depositions at this late notice will cause great hardship on the Plaintiffs. 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, respectfully request that the Court grant Plaintiffs' Response to Defendant, The United States', Motion for Protective Order and pray for the Court to enter an order denying the Defendant, The United States', Motion for Protective Order and order that Plaintiffs be allowed to take the depositions agreed to and scheduled for March 29 and 30, 2006 (Murphy and Few), or in the alternative, Plaintiffs would ask that the Court amend the scheduling order to allow for additional time to depose witnesses prior to Plaintiffs' Expert Reports' deadline, moving the April 14, 2006 deadline for Plaintiffs' Expert Reports to May 15, 2006, and moving Defendant's and Intervenor's Expert Reports' deadline to 3

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June 15, 2006, with all other matters on the scheduling order of this Honorable Court remaining in tact, 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 ERIC 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 (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

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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 27th 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 5

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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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