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

Case 1:05-cv-00186-FMA

Document 31

Filed 02/06/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

LAVETTA ELK,

) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________)

Case No. 05-186L Judge Francis M. Allegra

PLAINTIFF'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE WHY SGT. JOSEPH KOPF SHOULD NOT BE HELD IN CONTEMPT Defendant, UNITED STATES' Opposition to Plaintiff's Motion for Order to Show Cause Why Sgt. Joseph Kopf Should Not Be Held in Contempt is replete with misrepresentations and attempts to confuse the issues. Nevertheless, Plaintiff will address each of the arguments raised by UNITED STATES in the Opposition Memorandum. Notably absent from the UNITED STATES' Opposition Memorandum is any explanation as to how both its counsel and Sgt. Kopf suddenly and independently became unavailable for Sgt. Kopf's deposition on the eve of the scheduled deposition for which Sgt. Kopf was subpoenaed. It was only after Sgt. Kopf failed to appear for deposition that the UNITED STATES raised any issue that the deposition was scheduled beyond the close of fact discovery. The UNITED STATES and Sgt. Kopf's counsel received the Notice of Taking Deposition on January 5, 2007. Plaintiff's counsel, in the interests of cooperative discovery, had been trying since November 2006, to schedule the deposition of Sgt. Kopf on a mutually agreeable date with counsel for Sgt. Kopf and UNITED STATES. The only reason that Plaintiff's counsel scheduled the deposition of Sgt. Kopf Herman & Mermelstein, P.A. www.hermanlaw.com

Case 1:05-cv-00186-FMA

Document 31

Filed 02/06/2007

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CASE NO.: 05-186L for January 24, 2007, was to accommodate counsel, particularly counsel for UNITED STATES. It is therefore disingenuous and misleading for UNITED STATES to refer to Plaintiff's efforts to take Sgt. Kopf's deposition as "belated" when the date of the deposition was essentially dictated by the constraints and requirements of counsel for the UNITED STATES and Sgt. Kopf. As an example, counsel for UNITED STATES insisted that the deposition not take place during the first two weeks of January because one its attorneys would be out of the country. It also disingenuous for UNITED STATES to suggest that Sgt. Kopf failure to attend his deposition should be excused based on the discovery cut-off date when UNITED STATES has itself engaged in substantial discovery beyond the discovery cut-off date, including issuing five (5) subpoenas duces tecum on or after January 30, 2007 which seek copies of Lavetta Elk's medical records and require compliance on February 14, 2007. Although not specifically referenced on the Certificate of Service, Sgt. Kopf's counsel did receive a copy of the Plaintiff's Motion for Order to Show Cause. In its Opposition Memorandum, UNITED STATES goes to great lengths to advise the court on multiple occasions that it does not represent Sgt. Kopf. Yet, in the Opposition Memorandum, UNITED STATES argues on behalf of Sgt. Kopf that he should not be held in contempt. Given UNITED STATES' contention that it does not represent Sgt. Kopf, despite the fact they simultaneous became "unavailable" for the scheduled deposition, their arguments on his behalf should be rejected.

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Case 1:05-cv-00186-FMA

Document 31

Filed 02/06/2007

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CASE NO.: 05-186L Finally, even as of the filing of this Reply Memorandum, neither Sgt. Kopf nor any of his counsel 1 have contacted Plaintiff's counsel to either (a) advise the Sgt. Kopf would not be appearing for deposition; (b) acknowledge Sgt. Kopf's failure to appear for deposition; or (c) provide alternate dates for the deposition of Sgt. Kopf. Dated: February 6, 2007. Respectfully submitted, HERMAN & MERMELSTEIN, P.A. Attorneys for Plaintiff 18205 Biscayne Boulevard Suite 2218 Miami, Florida 33160 Telephone (305) 931-2200 Facsimile: (305) 931-0877 www.hermanlaw.com

By:

s/ Jeffrey M. Herman . JEFFREY M. HERMAN, ESQ. [email protected] STUART S. MERMELSTEIN, ESQ. [email protected] ADAM D. HOROWITZ, ESQ. [email protected]

At the time Sgt. Kopf was subpoenaed for deposition, he was represented by Ryan W. Rosauer, Cpt., JA, Senior Defense Counsel, Fort Riley, KS 66442, with whom Plaintiff's counsel coordinated a specific date, time, and location for Sgt. Kopf's deposition. Herman & Mermelstein, P.A. www.hermanlaw.com -3-

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Case 1:05-cv-00186-FMA

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Filed 02/06/2007

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CASE NO.: 05-186L CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 6, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Kevin Stark Webb, Esq. [email protected]

An additional copy of this Motion has been served via facsimile on February 6, 2007 to Bruce Barry, Esq., 431A Houston Street, Manhattan, Kansas 66502, Fax no. (785) 537-0611. s/ Jeffrey M. Herman .

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