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

Case 1:02-cv-01894-EJD

Document 134

Filed 09/05/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) CONSUMERS ENERGY COMPANY, ) ) Plaintiff, ) ) No. 02-1894C v. ) (Chief Judge Damich) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) JOINT MOTION FOR AN ENLARGEMENT OF DEADLINES IN THE COURT=S SCHEDULING ORDER Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims, and the Court=s revised scheduling order, dated July 3, 2008, defendant, the United States, and plaintiff, Consumers Energy Company ("Consumers"), respectfully request that the Court order an enlargement of deadlines in the current scheduling order. The parties seek to enlarge the current September 12, 2008 deadline for the Government to submit expert witness and audit reports in response to Consumers' damages claim, to and including Friday, December 12, 2008. The parties also request that the Court modify the other deadlines contained in its July 3, 2008 revised scheduling order, with the exception of the status conference scheduled for December 2008. A proposed schedule reflecting the requested enlargement and specific deadlines is set forth below. The parties are continuing to conduct discovery in this case. The Government is continuing to depose fact witnesses and Consumers is producing documents in response to a number of Government requests for production of documents. However, during the ongoing discovery period, the United States Court of Appeals for the Federal Circuit issued decisions in Yankee Atomic Electric Co. v. United States, Nos. 2007-5025, -5031 (Fed. Cir. Aug. 7, 2008),

Case 1:02-cv-01894-EJD

Document 134

Filed 09/05/2008

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Pacific Gas and Electric Co. v. United States, No. 2007-5046 (Fed. Cir. Aug. 7, 2008), and Sacramento Municipal Utility District v. United States, Nos. 2007-5052, -5097 (Fed. Cir. Aug. 7, 2008). As a result, the parties are addressing the affect of those decisions on this case. Earlier this week, Consumers provided the Government with a revised expert report from one of its expert witnesses. In addition, within the next few weeks, Consumers intends to provide the Government with updated expert reports from its two remaining expert witness, Eileen Supko (to account for specific allocations under the 1987 ACR rate addressed in the Federal Circuit's opinions) and James Speyer (Consumers' damages claim). The parties require a sufficient opportunity to continue discovery and to address the revisions in Consumers' expert reports before the Government submits its own expert reports, which could not be accomplished without an enlargement of the deadlines in the scheduling order. There have been three prior enlargements of time for this purpose. On June 25, 2007, the Court granted the parties' June 22, 2007 joint motion for enlargement and revised the scheduling order to reflect the dates proposed by the parties. In January 2008, the Government requested an enlargement of the deadlines in the Court= scheduling order. In response to the Court=s direction, the parties conferred and agreed to an enlargement of the scheduling order. On February 25, 2008, the Court granted the parties= request and revised the scheduling order to reflect the dates agreed to by the parties. Finally, on July 3, 2008, the Court granted the parties' most recent joint motion for enlargement. An enlargement of the current deadlines in the Court's scheduling order would provide the parties with sufficient time to complete discovery in light of the recent developments in the spent nuclear fuel litigation described above.

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Case 1:02-cv-01894-EJD

Document 134

Filed 09/05/2008

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The parties submit the following agreed upon deadlines and request that the Court enter an order enlarging the deadlines in the Court=s scheduling order: Current Deadline September 12, 2008 Agreed Upon Deadline December 12, 2008 Activity Submission Of Audit Report By Defendant In Response To Detailed Claim By Plaintiff; Submission Of Expert Report(s) By Defendant Defendant=s Deadline To Depose Plaintiff=s Expert Witnesses Status Conference Will Be Held To Set Trial Date, Etc. Plaintiff=s Deadline To Depose Defendant=s Expert Witnesses Close of Fact And Expert Discovery (Including Completion Of All Depositions)

October 10, 2008 December 2008 February 10, 2009 February 10, 2009

January 16, 2008 December 2008 May 11, 2009 May 11, 2009

CONCLUSION For the foregoing reasons, we respectfully request that the Court grant this motion for an enlargement of the deadlines in the Court=s July 3, 2008, scheduling order, and adopt our proposed revised discovery schedule included in this motion.

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Case 1:02-cv-01894-EJD

Document 134

Filed 09/05/2008

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Respectfully submitted, s/Thomas O. Mason by Jeffrey S. Theuer THOMAS O. MASON Williams, Mullen, Clark & Dobbins 8270 Greensboro Drive McLean, VA 22101 Tele: (703) 760-5200 Fax: (703) 748-0244 Jeffrey S. Theuer Loomis, Ewert, Parlesy, Davis & Gotting, P.C. 232 S. Capitol Avenue, Suite 1000 Lansing, MI 48933 (571) 482-2400 OF COUNSEL: James E. Bruner Arunas T. Udrys Consumers Energy Company 212 West Michigan Avenue Jackson, MI 49201 (517) 788-2152 Harvey J. Messing Miller, Canfield, Paddock & Stone, P.L.C. Suite 900 Lansing, MI 48933 (517) 487-2070 Attorneys for Plaintiff September 5, 2008 GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/Scott R. Damelin SCOTT R. DAMELIN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-2312 Fax: (202) 307-2503 JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 Attorneys for Defendant

Case 1:02-cv-01894-EJD

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CERTIFICATE OF FILING I hereby certify that on September 5, 2008, a copy of the foregoing AJOINT MOTION FOR AN ENLARGEMENT OF DEADLINES IN THE COURT=S SCHEDULING ORDER@ 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/Scott R. Damelin

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