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

Case 1:05-cv-00708-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ SCOTT TIMBER COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 05-708C (Judge Lettow)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Plaintiff opposes defendant's motion for an enlargement of time within which to file its motion in limine and its response to plaintiff's pending motion for an order admitting certain deposition transcripts, accompanying deposition exhibits and answers to interrogatories as party admissions.

On April 23, 2008, the parties jointly submitted to the Court a schedule of carefully agreed to due dates for various motions and other filings prior to the trial in this case scheduled to commence on June 30, 2008. Plaintiff's counsel has planned his pre-trial preparation, including the preparation of out-of-town witnesses, and rearranged work deadlines in other matters based on this schedule which was approved by the Court. Defendant's motion does not provide for any extensions of times for plaintiff's motions that would be affected by defendant's proposed schedule, leaves plaintiff in the position of having to file its own motion in limine on June 6 while defendant's motion would not be due until June 11, and makes no allowance for the 1

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due date of plaintiff's reply to defendant's response to plaintiff's motion for admissions, which under the Court rules as modified by the parties' stipulated agreement to use immediate service (see footnote below) would be due on June 20, 2008, the same day as the scheduled pre-trial conference in this action.

The current schedule for filings due in advance of the June 20, 2008 pre-trial conference in this matter is as follows:

1.

Defendant's pre-trial memorandum, final exhibit list and final witness list are due

to be filed and served on plaintiff on May 30, 2008.

2.

Defendant's response to plaintiff's motion for an order admitting deposition

transcript excerpts, deposition exhibits and interrogatory answers as admissions is due to be filed and served on plaintiff by May 30, 2008.1

3.

Both parties must serve and file final lists of rebuttal witnesses and rebuttal

exhibits with the Court on June 6, 2008.

In the Joint Certification to Appendix A, Paragraph 13(d) filed on April 23, 2008 the parties agreed that "all service of pre-trial material is to be by electronic mail, facsimile or handdelivery on the date due." The clear intention of the parties' agreed procedure was to eliminate the 3 days ordinarily allowed for service for all filings made in the short time remaining before trial. RCFC 6(e). Accordingly, defendant's response to plaintiff's motion to admit certain deposition transcripts, deposition exhibits and answers to interrogatories as party admissions is due to be filed and served by electronic mail, facsimile or hand-delivery on May 30, 2008, not on June 2, 2008. 2

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4.

Both parties must file motions in limine, if any, on June 6, 2008.

5. 10, 2008.

Both parties must file and serve objections to witness lists or exhibit lists on June

6.

Plaintiff's reply to defendant's response to plaintiff's motion to admit certain

deposition transcripts, deposition exhibits and answers to interrogatories as party admissions is due to be filed and served on June 10, 2008.

7. 13, 2008.

The parties' responses to any motions in limine must be served and filed by June

8.

By June 17, 2008, the parties' responses to motions raising objections to

witnesses or exhibits must be filed and served, and the parties' replies to any responses to motions in limine must be filed and served.

9.

The pre-trial conference in this matter is June 20, 2008.

Plaintiff's counsel, like defendant's counsel, must attend to many other matters and other cases during this time period, and we have scheduled the preparation of out-of-town witnesses and other critical pre-trial preparation for the period between June 6, 2008 and the start of trial in this matter on June 30, 2008 in reliance on the Court's approved schedule. The basis for defendant's motion for an enlargement is merely the press of other business, and accommodating 3

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defendants would simply shift the difficulties and rescheduling burden to plaintiff and the Court. Both parties' counsel have had adequate time to adjust their respective work loads to accommodate the current schedule.

If the due dates for both parties for submitting motions in limine are moved from June 6 to June 11 and defendant is permitted to respond to plaintiff's pending motion for the admission of certain deposition transcripts, deposition exhibits and interrogatory answers on June 11, as defendant requests, and plaintiff is given the same number of days to respond to these items as reflected in the current schedule (7 days), plaintiff would then have to file its response to defendant's motion in limine and its reply to defendant's response to plaintiffs' motion for the admission of excerpts of depositions, deposition exhibits and interrogatory answers on June 20, 2008 (the date of the pre-trial conference). The parties' replies to responses to motions in limine would then be due June 24 (four days after the pre-trial conference). This places an undue burden on plaintiff counsel's pre-trial preparation and disrupts the Court's schedule.

The original schedule was arrived at by the parties with the objective of having all motions fully briefed and before the Court prior to the June 20, 2008 pre-trial conference. Defendant's current request for additional time threatens to make that objective unobtainable, forces plaintiff to try to reschedule work and commitments in other cases and to clients in nonlitigation matters to other time frames, thereby seriously disrupting plaintiff's pre-trial preparation and may cause the Court to have to reschedule the pre-trial conference.

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For each of the foregoing reasons, plaintiff requests that defendant's motion for an enlargement be denied and that the Court issue an order confirming the filing and service dates now in effect as set forth by plaintiff above. Respectfully submitted,

s/Gary G. Stevens SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Counsel for Plaintiff OF COUNSEL: Ruth G. Tiger Eric J. Pohlner SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Dated: May 23, 2008

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