Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00776-MMS

Document 63

Filed 12/10/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 05-776C (Judge Sweeney)

PLAINTIFFS' RESPONSE TO DEFENDANT'S SECOND MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO COMPLETE DISCOVERY On September 13, 2007, the Government filed a Motion for an Enlargement of Time for Defendant to Complete Discovery, requesting an extra ninety days to finish discovery. (See docket entry # 53, at 10.) In that motion, the Government asserted that it required additional time for discovery because "plaintiffs have proposed adding three additional plaintiffs to their complaint; thus, additional time will be required in order to take any necessary discovery from the newly added plaintiffs." (Id. at 1; see also id. at 7-10.) The Court granted the Government's motion on September 14, 2007, allowing the Government until December 13, 2007, to complete discovery. (See docket entry # 54.)

Case 1:05-cv-00776-MMS

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Now, in support of its Second1 Motion for Enlargement of Time for Defendant to Complete Discovery (hereinafter "Current Discovery Extension Motion"),2 the Government cites the exact same reason as justification for the additional discovery extension, claiming its "need for this additional time to complete discovery is primarily the result of plaintiffs' proposed addition of three new parties to this lawsuit." (Def.'s Mot. at 1.) This assertion is dubious given the Government's concessions in its response to plaintiffs' motion to join these new parties that "the underlying factual allegations will not change as a result of the late addition of the three new plaintiffs" and the fact that none of the claims asserted against the Government will change. (Def.'s Resp. Pls.' Mot. Join Add'l Pls. at 2.) Initially, plaintiffs intended to oppose this request for yet another discovery extension. During the recent deposition of Ag-Innovations, Inc. on December 6, 2007, however, counsel for plaintiffs learned for the first time of the existence of additional documents in Ag-Innovations, Inc.'s possession that are responsive to a Government document request. As a result, plaintiffs now are willing to consent to the Government's Current Discovery Extension Motion and will not oppose a discovery extension to February 29, 2008.3

Although the Government entitles this motion its "Second" Motion for Enlargement of Time for Defendant to Complete Discovery, this request is actually the Government's third request to extend discovery. The discovery period had been extended at least two previous times (see docket entries ## 22 and 40), one of which occurred specifically at the Government's request. (See docket entry # 21.) The second request occurred in September 2007 when the Government filed its Previous Discovery Extension Motion. Plaintiffs will cite the Government's "Second" Motion for Enlargement of Time for Defendant to Complete Discovery as "Def.'s Mot. at __."
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1

Plaintiffs note that their Cross-Motion to Compel the United States to Identify and Produce a Rule 30(b)(6) Designee(s) on Certain Topics, filed on August 16, 2007, remains 2

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Regarding the Government's false and inappropriate allegations of interference in the discovery process by plaintiffs' counsel, plaintiffs refer the Court to their Reply in Support of Their Motion to Join Additional Party Plaintiffs and for Leave to File an Amended Complaint.4 Respectfully submitted, By: s/ Jonathan L. Abram Jonathan L. Abram

OF COUNSEL: Raymond S. Calamaro Kevin S. Willen HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 (202) 637-5910 (facsimile) Dated: December 10, 2007

HOGAN & HARTSON, LLP 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace and Houghton Freeman

pending before the Court. (Docket entry # 48.) If the Court were to grant plaintiffs' crossmotion, plaintiffs may require additional time to complete discovery.
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Pursuant to RCFC Rule 5.3(b)(3), plaintiffs have appended a copy of this filing with this Response.

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CERTIFICATE OF FILING The undersigned certifies under penalty of perjury that on this 10th day of December, 2007, I caused a true and correct copy of the foregoing Plaintiffs' Response to Defendant's Second Motion for Enlargement of Time of Time For Defendant to Complete Discovery, along with the attached appendix, to be filed with the Court and to be served via the Court's electronic filing system on the following: Sheryl L. Floyd, Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, DC 20530

By:

s/ Kevin S. Willen Kevin S. Willen