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

Case 1:02-cv-01894-EJD

Document 66

Filed 12/20/2004

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSUMERS ENERGY COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 02-1894C (Chief Judge Damich)

DEFENDANT'S MOTION FOR LEAVE TO RESPOND TO PLAINTIFF'S PROPOSED FINDINGS OF FACT CONTAINED IN PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON CONTRACT LIABILITY Defendant, the United States, respectfully requests that it be granted leave to file a separate response to the "Statement of Facts" contained in "Consumer Energy Company's Motion For Summary Judgment On Contract Liability," dated October 18, 2004, as contemplated by RCFC 56(h). A copy of defendant's proposed filing accompanies this motion for leave. Pursuant to 56(h)(1), plaintiff, Consumers Energy Company ("Consumers"), was to file, "together with its motion [for summary judgment], a separate document titled Proposed Findings Of Uncontroverted Fact," which was to "contain concise, separately numbered paragraphs setting forth all of the material facts upon which the party bases its motion and as to which the party believes there is no genuine material dispute." Although Consumers filed its summary judgment motion, Consumers did not file a separate document containing its proposed findings of uncontroverted fact. However, Consumers included at pages 7 through 11 of its motion for summary judgment a statement of facts that was numbered from paragraphs 1 through 10. To provide us with an opportunity to respond to those proposed facts in the manner contemplated by RCFC 56(h), we respectfully request that the Court grant us leave to file the accompanying response to the proposed findings of fact that Consumers included at pages 7 through 11 of its motion for summary judgment.

Case 1:02-cv-01894-EJD

Document 66

Filed 12/20/2004

Page 2 of 3

For the foregoing reasons, we respectfully request that the Court grant this motion for leave. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR Office of General Counsel Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585

December 20, 2004

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Case 1:02-cv-01894-EJD

Document 66

Filed 12/20/2004

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 20th day of December 2004, a copy of foregoing "DEFENDANT'S MOTION FOR LEAVE TO RESPOND TO PLAINTIFF'S PROPOSED FINDINGS OF FACT CONTAINED IN PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON CONTRACT LIABILITY" 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/Harold D. Lester, Jr.