Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-608C (Judge Hewitt)

DEFENDANT'S MOTION TO FILE STATUS REPORT OUT OF TIME Pursuant to RCFC 6(b), defendant requests, out-of-time, an enlargement of time of 12 days, to and including June 27, 2007, within which to file the Defendant's Status Report (attached hereto as Exhibit A). This is our first request for an enlargement of time for this purpose. The Court directed the parties to make this motion, with respect to the parties' joint status report, during our telephonic status conference on June 15, 2007. We have been unable to obtain plaintiff's position on this motion. As we discussed at the June 15, 2007 telephonic status conference, the length of the defendant's required internal review process threatened, on that day, to delay the filing of the parties' Status Report. After the telephonic status conference, counsel for the plaintiff raised a number of potential discovery issues to counsel for the defendant. Counsel for both parties thought they could quickly resolve these issues, but, in hindsight, our discussions have taken much longer. The issues are outlined in the Defendant's Status Report, and they remain unresolved. Counsel for the parties have been trading emails and telephone

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messages but, for some reason, have not been able to contact each other at times when they could discuss the issues in detail. The defendant is confident, though, that the parties will be able to resolve the discovery disputes without the Court's intervention. Accordingly, we are prepared to file the Defendant's Status Report, and respectfully request leave to do so. We apologize to the Court for any inconvenience this delay in filing may have caused. Should the Court grant this motion, we also ask that the Court direct the Clerk to file Exhibit A hereto as a separate docket entry. For these reasons, defendant respectfully requests that the Court grant this motion for an enlargement of time, out-of-time. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director /s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L St., N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel. (202) 616-0170

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Fax. (202) 514-8624 June 27, 2006 Attorneys for Defendant

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CERTIFICATE OF FILING

I hereby certify that on June 27, 2006, a copy of the foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME, OUT-OFTIME" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Devin A. Wolak DEVIN A. WOLAK

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EXHIBIT A

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-608C (Judge Hewitt)

DEFENDANT'S STATUS REPORT Pursuant to the Court's Scheduling Order in this case, as amended from time to time, the defendant, the United States respectfully submits the following status report. (1) The parties have substantially completed discovery in this case.

Counsel for the plaintiff has informed counsel for the defendant that she may subpoena James Henderson for his deposition; Mr. Henderson is a retired Federal employee and appears to have been actively avoiding contact with either party in this case. The defendant requires no additional discovery. (2) The parties have engaged in Alternative Dispute Resolution ("ADR"),

with the considerable and appreciated efforts of Judge Bruggink. The effort to settle this case was unsuccessful. (3) On June 5, 2007, United States Representative Bob Filner announced

that he will be presenting a congressional reference in favor of both Mr. RiveraAgredano (the plaintiff) and Mr. Calderon (the former plaintiff). (See Attachment A). Furthermore, plaintiff's counsel understands, and has informed defendant's counsel, that Rep. Filner will also present a congressional reference for the plaintiff

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and former plaintiff in the related case, Rodriguez v. United States, Fed. Cl. No. 05-370 (Judge Lettow). (4) The defendant requests, consistent with the parties' last Status Report,

that this case proceed to trial within the next four to six months.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director /s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, DC 20530 Tel. (202) 616-0170 Fax. (202) 514-8624 June 27, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING

I hereby certify that on June 27, 2007, a copy of the foregoing "DEFENDANT'S STATUS REPORT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/ Devin A. Wolak DEVIN A. WOLAK

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ATTACHMENT A

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More Tijuana news Filner backs Mexican man's claim vs. U.S. UNION-TRIBUNE June 5, 2007 TIJUANA ­ U.S. Rep. Bob Filner, D-San Diego, said yesterday that he will intervene in favor of a Mexican printer who spent nearly a year in a Mexican jail after soldiers found marijuana hidden inside a car he bought at an auction of vehicles seized by the U.S. Customs Service. At a news conference in Tijuana's Rio Zone, Filner said he will present a "congressional reference" to allow the U.S. Court of Federal Claims to consider Francisco Rivera's petition for compensation from the U.S. government. Rivera and his brother-in-law, Alfonso Calderón, were arrested after soldiers found 30 pounds of marijuana in their car at a checkpoint outside Ensenada. The two insisted the marijuana was in the car when Rivera had bought it at the auction in San Diego. They were released in 2003 on the orders of a Mexican appellate court. The men sued the U.S. government, but a U.S. federal claims court ruled that only Rivera, who bought the vehicle, had standing to sue. A 2004 U.S. Supreme Court ruling in a separate case prevented their case from going forward, because the arrest occurred outside the United States.

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http://www.signonsandiego.com/news/mexico/tijuana/20070605-9999-1m5tjcar.html

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