Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

Document 55

Filed 02/12/2007

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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 FOR LEAVE TO FILE RESPONSE TO ALFONSO CALDERON'S MOTION TO RECONSIDER Pursuant to Rules of the Court of Federal Claims 59 and 60, defendant requests leave to file a response to the Motion By Alfonso Calderon Leon In Support Of Motion To Reconsider And Reinstate Third Party Beneficiary Claim, which was filed on January 26. 2007, and for which Mr. Calderon filed a motion to supplement on February 9, 2007. Mr. Calderon's motion to reconsider essentially seeks to re-join Mr. Calderon as a plaintiff in this case. If the Court grants Mr. Calderon's motion, the exposure to the defendant in this case could theoretically double. Therefore, we desire an opportunity to respond to the motion before the Court rules upon it. However, because Mr. Calderon's motion is styled as a motion to reconsider, we may not have a right to respond. Mr. Calderon's motion states that it is filed pursuant to RCFC 60(b)(2), which provides that "the court may relieve a party . . . from a final judgment, order, or proceeding for . . . (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under RCFC 59(b)." Rule 60 is silent as to whether a party may respond to a motion brought under that Rule, but RCFC 59 -- which RCFC 60(b)(2) invokes -- prohibits responses to motions brought under that Rule unless requested by the Court. We are therefore hesitant to file a response without leave of Court, and respectfully request leave to file a response to Mr. Calderon's motion to reconsider. Furthermore, because Mr. Calderon recently sought to supplement his motion to reconsider, we ask that the response be due no sooner than Monday, February 26, 2007, so that we may make a full and complete

Case 1:05-cv-00608-ECH

Document 55

Filed 02/12/2007

Page 2 of 3

response to Mr. Calderon's entire supplemented motion. For the foregoing reasons, defendant requests that the Court grant this motion for leave to file a response to Mr. Calderon's motion to reconsider. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting 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 February 12, 2007 Attorneys for Defendant

Case 1:05-cv-00608-ECH

Document 55

Filed 02/12/2007

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on February 12, 2007, a copy of the foregoing "DEFENDANT'S MOTION FOR LEAVE TO FILE RESPONSE TO ALFONSO CALDERON'S MOTION TO RECONSIDER" 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