Free Order on Motion to Take Deposition - District Court of Federal Claims - federal

Case 1:05-cv-00776-MMS

Document 35

Filed 01/24/2007

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In the United States Court of Federal Claims
No. 05-776C (Filed: January 24, 2007)

************************************* AG-INNOVATIONS, INC., * LARRY FAILLACE, LINDA FAILLACE, * and HOUGHTON FREEMAN, * * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * ************************************* ORDER Before this court are plaintiffs' motion to conduct more than ten depositions pursuant to Rule 30(a)(2)(A) of the Rules of the United States Court of Federal Claims ("RCFC"), filed November 22, 2006, and defendant's motion for protective order and motion to strike plaintiffs' proposed expert, filed December 14, 2006. The parties have completed briefing on their motions. On January 22, 2007, this court held a status conference to discuss the parties' respective motions. Below, the court reiterates its rulings and the parties' representations during the proceeding: (1) The plaintiffs may depose the following individuals: Mr. Yves Berger; Ms. Linda Detwiler; Dr. Mark Hall; Dr. Todd Johnson; Mr. Axel Meister; Dr. Katherine O'Rourke; Dr. Richard Rubenstein; and Mr. Peter Welkerling. During the conference, plaintiffs' counsel advised that plaintiffs no longer seek to depose Dr. Leon Graves. The parties represented that they will resolve between themselves which of the United States Department of Agriculture officials plaintiffs will depose. Plaintiffs stated that after deposing the above-named individuals, plaintiffs may seek to depose additional individuals. At such time, the parties represented that

(2)

(3)

(4)

Case 1:05-cv-00776-MMS

Document 35

Filed 01/24/2007

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they will continue to cooperate to conduct discovery expeditiously. Should the parties need the court's guidance regarding discovery, the parties shall contact Chambers to schedule a status conference. (5) The court held that the parties may renew their respective motions should the parties disagree which additional individuals plaintiffs may depose. The parties will submit a revised schedule for discovery to enlarge the time in which to conduct discovery.

(6)

Additionally, during the status conference, defendant informed the court that it intends to pursue the affirmative defense of nuisance. In its answer to plaintiff's complaint, defendant did not raise any affirmative defenses. RCFC 8(c) requires a party to "set forth affirmatively accord and satisfaction, arbitration and award . . . and any other matter constituting an avoidance or affirmative defense." Accordingly, by no later than Wednesday, February 14, 2007, defendant shall file an amended answer if it seeks to pursue any affirmative defenses.1 For the reasons stated above and the reasons stated during the January 22, 2007 status conference: 1. The court DENIES WITHOUT PREJUDICE, with a right to renew, plaintiffs' Motion for Leave to Conduct More Than Ten Depositions. The court DENIES WITHOUT PREJUDICE, with a right to renew, defendant's Motion for Protective Order and Motion to Strike Plaintiffs' Proposed Expert. No later than Wednesday, February 14, 2007, defendant shall file an amended answer if defendant seeks to pursue any affirmative defenses.

2.

3.

IT IS SO ORDERED. s/ Margaret M. Sweeney MARGARET M. SWEENEY Judge

RCFC 15(a) provides that the court may allow a party to amend its pleadings when "justice so requires."

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