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

Case 1:05-cv-00215-RHH

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Filed 05/01/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PHYLWAY CONSTRUCTION, LLC, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

No. 05-215C (Judge Hodges)

THE UNITED STATES, Defendant.

DEFENDANT'S MOTION FOR AN ENLARGEMENT UPON BEHALF OF THE PARTIES Pursuant to RCFC 6(b), defendant respectfully requests an enlargement of time of 122 days, from April 30, 2006, to and including August 31, 2006, within which to complete discovery. The Court has previously granted an enlargement for this purpose of 152 days. Plaintiff's counsel has read this motion and concurs. During this period of discovery, the parties have exchanged additional discovery and completed their document discovery. The Government undertook an audit by the Defense Contract Audit Agency ("DCAA"), which was delayed on several occasions. However, the auditors have informed us that they have completed their initial work, provided a draft to plaintiff in mid-April, and received plaintiff's comments on April 27. DCAA now must consider those comments, and finalize its report, which includes obtaining supervisory review. During this period, defendant's counsel also requested and received proposals from several experts capable of assisting the parties in resolving this case. Final selection, however, awaits internal approval and contracting procedures for retaining of the expert, which should require approximately one week. Although we had anticipated accomplishing more during this period and had set aside weeks in April for expert meetings and depositions, that became impossible due to several other

Case 1:05-cv-00215-RHH

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preexisting commitments of the parties' counsel. For example, since filing our last motion, defendants' counsel has filed approximately 20 dispositive and response briefs. Although we anticipated some of these in our last motion, more were added to the schedule and virtually all were subject to enlarged deadlines because of counsel's demonstrable scheduling difficulties. Unexpected, for example, was the extent of his defendant's counsel's efforts in Rocky Mountain v. United States, No. 04-1434, a case involving a complex regulatory scheme and complicated actuarial questions, in which the parties undertook an intensive alternative bilateral dispute resolution procedure under this Court's close supervision. During December and January, counsel planned and participated in weekly settlement discussions and internal analyses. An agreed-upon settlement proposal was reached, during a near all-day negotiating session, on January 17, 2006. The matter was finally dismissed this month. Defendant's counsel also assumed unexpected responsibilities for: delivering an oral argument, and preparing a notice of supplemental authority, in AF v. Nicholson, 05-972 (Fed. Cir.), a case to which he was assigned in order to relieve a colleague who became unavailable due to a serious illness; assuming responsibility for a protracted mid-trial settlement negotiation, in Remcon v. United States, 032478 (Fed. Cl.), another case in which a colleague became unexpectedly unavailable. Also unexpected was the extent of the effort in preparing a brief and proposed findings and responding to proposed findings in Clark Construction v. United States, a Wunderlich Act, fact-intensive, construction claim appeal of a board's a 358-page opinion. Plaintiff's brief rested upon over 100 proposed findings, each comprising multiple subfindings, which had to be addressed in detail, and holdings concerning eight discrete claims, each with significant sub issues. At the end of that period, defendant's counsel became ill on two separate occasions,

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which gave rise to enlargements that have had a ripple effect upon counsel's schedule that only now is subsiding. Between February and April, defendant's counsel's schedule became particularly hectic due to counsel's efforts to: construct an alternative dispute resolution mechanism and prepare a number of issue papers to resolve VT Halter v. United States, No. 05-369 (Fed .Cir.), another case affected by Hurricane Katrina; negotiate the design of a claim survey form and electronic data negotiate the design of a claim survey form and electronic data sharing protocol in Christofferson v. United States, No. 01-495C, a case involving the individual claims of approximately 7500 former Federal employees, and a complicated alternative dispute procedure; and prepare motions for summary judgment and replies in many other of his cases. As a result of these matters, during the time when defendant's counsel's would have hoped to turn more of his attention to this case, his schedule included these deadlines: February 17 - Response to RCFC 56(f) motion. Calcasieu v. United States, No. 021219C (Fed. Cl.) (enlarged by 4 days). February 17 - Memorandum concerning parties' position regarding question of law affecting questionnaires to be distributed to 7,500 plaintiffs in FLSA overtime lawsuit. Christofferson v. United States, No. 01-495C (Fed. Cl.) (The parties resolved the matter after the filing was prepared). February 22 - Reply brief, Response to Plaintiffs' RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Hermes v. United States, No. 02-1460C (Fed. Cl.) (enlarged by 14 days). February 27 - Reply brief, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. El Paso v. United States, No. 02-1094C (Fed. Cl.) (enlarged, by 19 days). March 3 Motion for Summary Judgment, Proposed Findings of Fact. Gary Williams v. United States, No. 03-2106C (Fed. Cl.) (enlarged one week). Reply Brief in Flint Hills v. United States, No. 02-462C. -3-

March 8 -

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March 10 -

Reply brief, Response to Plaintiffs' RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Sunoco v. United States (enlarged by 14 days). Reply brief, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Calcasieu v. United States, No. 02-1219C (Fed. Cl.) (enlarged by 21 days). Motion for Summary Judgment. Proposed Findings of Fact. Tesoro v. United States, No. 02-704C (Fed. Cl.) (enlarged by 14 days). Mediation Statements in VT Halter v. United States, No. 05-369C.

March 16 -

March 17 -

March 21 and 28 March 29 -

Reply brief, Response to Plaintiffs' RCFC 56(f) motion, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Conoco Phillips v. United States, No. 02-1367C (Fed. Cl.) (enlarged by 19 days). Summary judgment motion in La Gloria v. United States, No. 02-465C. Reply brief, Response to Plaintiffs' Proposed Findings of Uncontroverted Fact. Valero v. United States (enlarged by seven days). Moving brief in Chevron v. United States (enlarged by three days).

March 31 April 7 -

April 13 -

Nonetheless, defendant has completed document discovery, issued a detailed request for expert proposals, acquired proposals from three interested experts, and prepared for interviews of those experts. We seek 122 days because, given the difficulty of coordinating schedules during the summer months and the contractors' devotion to Hurricane Katrina recovery efforts, the parties believe that will be required to participate in one or more properly-planned settlement meetings and to conclude the approximately ten depositions they anticipate, should settlement efforts fail. In addition, during this time, defendant's counsel must prepare a reply brief in Clark Construction v. United States; prepare for and deliver an oral argument El Paso v. United States, Sunoco v. United States, and Hermes v. United States (combined arguments); prepare briefs in

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Gary Williams, La Gloria v. United States, Chevron v. United States, and Tesoro v. United States; and prepare a mediation reply statement and for a mediation conference in VT Halter v. United States. Defendant's counsel also has a scheduled vacation of four days in June. For these reasons, defendant respectfully requests an enlargement of time of 122 days, from April 30, 2006, to and including August 31, 2006, within which to complete discovery. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

WILLIAM G. MEINERS Attorney Advisor U.S. Army Corps. of Engineers New Orleans, Louisiana 70160-0267

s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, NW Attn: Classification Unit 8th Floor Washington, D.C. 20530 (202) 353-7961 Attorneys for Defendant

May 1, 2006

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Case 1:05-cv-00215-RHH

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CERTIFICATE OF FILING I hereby certify that on May 1, 2006, a copy of the foregoing 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/Steven J. Gillingham