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

Case 1:05-cv-00215-RHH

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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 151 days, from November 30, 2005, to and including April 30, 2006, within which to complete discovery, and to postpone the post-discovery status conference with the Court until a time to be determined by the Court following the close of discovery. This is our first request for an enlargement for this purpose. Plaintiff's counsel has read this motion and concurs. Since the period of discovery, the parties have exchanged initial disclosures and a round of interrogatories and requests for production, and have begun an audit of the claim. However, due to the effects of Hurricane Katrina and the call of defendant's counsel to active military service (from July through September, 2005) and subsequent changes in his case load, the parties have not completed their pretrial work or concluded that settlement is not possible in this case. The construction at issue in this case took place in Louisiana. The contract was administered by the Corps of Engineers office in New Orleans, Louisiana. The cognizant audit activity (the Defense Contract Audit Agency ("DCAA")) also is located in New Orleans, Louisiana. Thus, for a substantial period of time between late August and October, 2005, DCAA and Corps of Engineers personnel and documents were unavailable for any purpose. During

Case 1:05-cv-00215-RHH

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most of the time since the filing of the parties' status report, defendant's counsel was in Germany pursuant to military orders recalling him to active military service. Since his return from Germany, defendant's counsel has devoted most of his time to representing the Government in connection with the Defense Department "jet-fuel" litigation, which comprises approximately 30 cases now before this Court. At the time of counsel's departure for his military assignment, these cases were stayed, pending a decision in Tesoro et al. v. United States, No. 04-5064 (Fed. Cir.). In late August, that appeal was decided (Tesoro et al. v. United States, 405 F. 3d 1339 (Fed. Cir. 2005), petition for reh'g. en banc denied, No. 045064 (Fed. Cir. Aug. 22, 2005)). Thereafter, defendant's counsel participated in the preparation of many status reports, and in status conferences to decide how to resolve the affected cases. More of these are scheduled. The result, thus far, has been a schedule full of summary judgment motions. Within the last two weeks, for example, counsel has prepared and filed motions for summary judgment, which address as many as approximately 14 discrete issues (Hermes v. United States, No. 02-1460C; El Paso v. United States, No. 02-1094C). He also has, among other things, negotiated a settlement and prepared the necessary memorandum and settlement papers in Briggs v. United Sates, No. 01-552C (Fed. Cl.); and planned and participated in several settlement discussions in Rocky Mountain v. United States, No. 04-1434, a case involving a complex regulatory scheme and complicated actuarial questions, in which the parties have been involved in an intensive alternative bilateral dispute resolution procedure under this Court's close supervision. We ask for an extension until April 30, because, between now and mid-March, 2006, defendant's counsel must: prepare for and conduct settlement discussions and complete all

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discovery in VT Halter v. United States, No. 05-369 (Fed .Cir.), another case affected by Hurricane Katrina; prepare for and conduct settlement discussions or engage in more wideranging discovery in Rocky Mountain; negotiate the design of a claim survey form and an electronic data sharing protocol in Christofferson v. United States, No. 01-495C, a case involving the individual claims of approximately 8000 former Federal employees, and a complicated alternative dispute procedure; prepare motions for summary judgment and replies in seven jet fuel cases, including: Chevron v. United States, No. 03-288C; Flint Hills v. United States, No. 02-462C; Sunoco v. United States, No. 02-466C; Calcasieu v. United States, No. 021219C; El Paso v. United States, No. 02-1094C; Hermes v. United States, No. 02-1460C; Gary Williams v. United States, No. 03-1206C, Conoco/Phillips v. United States, No. 02-1367C, and others; and negotiate and file status reports, participate in conferences, file answers, or complete settlements in 10 other jet fuel cases. In this case, during the requested period of enlargement, defendant expects to complete its hiring of an expert; plaintiff expects to serve another set of document requests; and the parties expect to complete their exchange of documents, take approximately 10 depositions, and conduct settlement discussions. For these reasons, defendant respectfully requests an enlargement of time of 151 days, from November 30, 2005, to and including April 30, 2006, within which to complete discovery, and to postpone the post-discovery status conference with the Court until a time to be determined by the Court following the close of discovery.

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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 Senior Trial Counsel 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

November 30, 2005

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CERTIFICATE OF FILING I hereby certify that on November 30, 2005, 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