Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:02-cv-01894-EJD

Document 65

Filed 12/17/2004

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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 AN ENLARGEMENT OF TIME Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests that the Court grant an additional enlargement of one business day, to and including December 20, 2004, within which to file defendant's response to plaintiff's cross-motion for summary judgment on contract liability, which the plaintiff, Consumers Energy Company ("Consumers"), filed on October 18, 2004. The Government's response to that motion is currently due on December 17, 2004. Defendant was previously granted an enlargement of time of 29 days for this purpose. Counsel for defendant attempted to contact counsel for plaintiff, Thomas Mason, regarding this motion, but counsel for plaintiff was out of the office by the time we became aware of the necessity of this motion. Earlier today, counsel for defendant filed with the Court the Government's reply to Consumers' response to the Government's motion for summary judgment upon Counts I and II of Consumers' complaint. In addition to that brief, the Government is due to file its response to Consumers' motion for summary judgment on contract liability. Counsel has worked diligently to complete that briefing, although he simultaneously has been responsible for numerous other matters relating to the various spent nuclear fuel ("SNF") cases that are pending before this Court, including the development of extensive post-trial briefing in Yankee Atomic Electric Co.

Case 1:02-cv-01894-EJD

Document 65

Filed 12/17/2004

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v. United States, No. 98-126C (Fed. Cl.), and of the Government's response to the Court's show cause order in Florida Power & Light Co. v. United States, No. 98-483C (Fed. Cl.), both of which, although not yet filed, have required significant coordination and research effort; preparation of two sets of briefs regarding summary judgment issues in Systems Fuels, Inc. v. United States, No. 03-2623C (Fed. Cl.), filed on December 8, 2004; and involvement in discussions both internally within the Department of Justice and externally with counsel for various plaintiffs regarding continuing activities in their cases. Despite this work, counsel for defendant has prepared a draft of the Government's response to plaintiff's summary judgment motion regarding liability, but has encountered an unexpected difficulty in finalizing that brief and its appendix. Specifically, despite his best efforts, and in part because of technical difficulties he has encountered in the development of the appendix to accompany the Government's response with which it appears he will need additional assistance, counsel for defendant has been unable to complete the necessary tasks to file the Government's brief this evening. We apologize for this inconvenience and respectfully request that the Court grant us one additional business day to rectify the apparent technical difficulty with the appendix and to verify the accuracy of the remainder of the brief's contents. For the foregoing reasons, we respectfully request that the Court grant our motion for an enlargement of time. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

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Case 1:02-cv-01894-EJD

Document 65

Filed 12/17/2004

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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 U.S. Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585

December 17, 2004

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Case 1:02-cv-01894-EJD

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Filed 12/17/2004

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CERTIFICATE OF FILING I hereby certify that on this 17th day of December 2004, a copy of foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME" 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.