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

Case 1:02-cv-01894-EJD

Document 123

Filed 07/01/2008

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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 February 25, 2008, defendant, the United States, and plaintiff, Consumers Energy Company, respectfully request that the Court order an enlargement of deadlines in the current scheduling order. The parties seek to enlarge the current July 2, 2008 deadline for the Government to submit expert witness reports, and an audit report in response to plaintiff=s damages claim, to and including Friday, September 12, 2008. The Government also requests that the Court modify the other deadlines contained in its February 25, 2008 revised scheduling order. A proposed schedule reflecting the requested enlargement and specific deadlines is set forth below. There have been two prior enlargements of time for this purpose. On June 22, 2007, the parties jointly filed a motion for enlargement of the Court=s June 9, 2006 scheduling order. On June 25, 2007, the Court granted the joint motion 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

Case 1:02-cv-01894-EJD

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Court granted the parties= request and revised the scheduling order to reflect the dates agreed to by the parties. 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 July 2, 2008 Agreed Upon Deadline September 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 Plaintiff=s Deadline To Depose Defendant=s Expert Witnesses Close of Fact And Expert Discovery (Including Completion Of All Depositions) Status Conference Will Be Held To Set Trial Date, Etc.

July 29, 2008 December 1, 2008 December 1, 2008

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

October 2008

December 2008 DISCUSSION

Initially, in June 2006, the Court issued a scheduling order for discovery in this case, but did not schedule a trial date. In January 2007, Consumers produced expert reports prepared by three expert witnesses, and in February 2007, the Government served Consumers with its first set of interrogatories and requests for production of documents. As the parties referenced in their joint status report, filed May 1, 2007, Consumers completed the sale of the Palisades Nuclear Power Plant (APalisades@) and Big Rock Independent Spent Fuel Storage Installation site (ABig Rock ISFSI@) to Entergy Nuclear Palisades LLC (AEntergy@) in April 2007. Prior to the filing of the May 1, 2007 joint status, Consumers requested, and the Government consented to, additional time for Consumers to respond to the Government=s interrogatories and to produce documents in response to the Government=s document production requests, primarily because of 2

Case 1:02-cv-01894-EJD

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Consumers= involvment with the pending sale to Entergy. As the parties further explained in their May 1, 2007 joint status report, a modification to the Court=s June 9, 2006 scheduling order was warranted, but a further modification most likely would be sought after Consumers served its responses to the Government=s discovery requests. On May 14, 2007, the Government received a production of documents from Consumers in response to the Government=s document production requests and interrogatories. In its responses to the Government=s requests for production of documents, Consumers stated that, for many of the Government=s specific requests, it would make potentially responsive documents available at various locations in Michigan. In addition to the documents that Consumers was making available for review in Michigan, plaintiff informed the Government that it intended to continue to produce additional responsive documents to the Government as it collected and reviewed documents. As a result, on June 22, 2007, the parties filed a joint motion for enlargement of the Court=s June 9, 2006 scheduling order. The motion stated that Athe parties continue to engage in discovery activities, but various factors have arisen that necessitate the need to extend various discovery deadlines,@ and the parties proposed an agreed-upon discovery schedule. As noted above, on June 25, 2007, the Court granted the joint motion for enlargement and revised the scheduling order to reflect the dates proposed by the parties. The parties continued to proceed with discovery, including the plaintiff=s continued production of documents to the Government. However, in early 2008, the Government concluded that, given the status of discovery to date, a further enlargement of the discovery deadlines was warranted. In January 2008, the Government filed a motion for enlargement of the scheduling order. Although Consumers did not oppose the Government=s motion, Consumers did not consent to the specific deadlines proposed by the Government. However, in 3

Case 1:02-cv-01894-EJD

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response to the Court=s order that the parties confer and agree to new deadlines (or the existing scheduling order would remain in place), the parties ultimately submitted list of revised deadlines for the scheduling order. On February 25, 2008, the Court, in consideration of the parties= agreed upon deadlines, issued a revised scheduling order. The February 25 order included a July 2, 2008 deadline for the submission of the Government=s expert reports and audit report, along with other discovery deadlines. A trial date has not been scheduled. The requested enlargement is necessary because, despite diligent efforts by both parties, discovery has not yet been completed. Consumers has produced additional documents to the Government, and it is continuing to produce additional documents and make documents available for the Government=s review. The Government has made substantial efforts to depose fact witnesses, including current and former Consumers employees, in this case. To date, the Government has deposed 16 fact witnesses, and a number of depositions are currently scheduled or will be scheduled for the near future. Just this week, the Government deposed two witnesses in Michigan, and another deposition is scheduled for July 2, 2008. Finally, in early June 2008, Consumers submitted an updated damages claim to the Government that reflects claimed incurred costs for the time period through the April 2007 sale to Entergy Nuclear Palisades, LLC. Although the parties continue to work cooperatively through the discovery process, and without setting forth the details of every aspect of discovery to date, the current status of discovery and the Government=s expert witness reports necessitates another enlargement of the discovery deadlines. An enlargement of the deadline for the Government to submit its own expert witness and audit reports and an enlargement of the deadline to depose plaintiff=s expert witnesses would not prejudice the plaintiff, as expert and fact discovery will still be completed within a reasonable time frame and because the Court has not yet scheduled a trial date. 4

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CONCLUSION For the foregoing reasons, we respectfully request that the Court grant this motion for an enlargement of the deadlines in the Court=s February 25, 2008, scheduling order, and adopt our proposed revised discovery schedule included in this motion. 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 July 1, 2008 GREGORY G. KATSAS Acting 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 Attorney for Defendant

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Case 1:02-cv-01894-EJD

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CERTIFICATE OF FILING I hereby certify that on July1, 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/ Stephen Finn