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

Case 1:04-cv-00710-SGB

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Filed 05/01/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JOHN FILOSA and SUSAN KEMBLE, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

04-710C (Judge Braden)

DEFENDANT'S MOTION FOR MODIFICATION OF DISCOVERY SCHEDULE Pursuant to Rule 6(b) and Rule 6.1 of the Rules of the Court of Federal Claims ("RCFC"), defendant respectfully requests that the Court modify the discovery deadlines ("discovery deadlines") established by the Court's March 5, 2008 scheduling order. The proposed schedule modifications are set forth below. This is the defendant's fifth motion for this purpose.1 Prior to filing this motion,

The original schedule established by the Court's order dated January 18, 2005 has been modified pursuant to three unopposed motions by plaintiffs (one of which did not seek the enlargement of all deadlines) and three unopposed motions by defendant, (one of which did not seek the enlargement of non-discovery deadlines). These motions were necessary because of: (1) the delays inherent in conducting nation-wide class certification discovery; (2) unanticipated delays in completing class certification discovery; and (3) difficulties in accommodating the schedules of third-party witnesses for depositions. In addition, the Court previously enlarged various discovery deadlines in orders dated July 26, 2006 and January 12, 2007. The Court also previously extended the discovery cut-off to October 29, 2007 in response to the parties' previous joint motion, which was

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defendant's counsel attempted to contact Plaintiffs' counsel by telephone, but the telephone call was not returned. As a result, defendant is unable to state whether plaintiffs will oppose this motion. As background, plaintiffs recently added an additional nineteen new plaintiffs to the action and despite the defendant obtaining a previous extension of the discovery period to depose some of these newly added plaintiffs, defendant has not been allowed to complete its discovery because of delays caused by plaintiffs. In response to two letters from the defendant urging plaintiffs to amend their complaint and add the new plaintiffs, finally, on January 31, 2008, plaintiffs filed an amended complaint adding nineteen plaintiffs to the action. Given the limited amount of time remaining before the discovery cut-off, which at that time was set to end on February 26, 2008, on February 7, 2008, defendant sent plaintiffs a deposition notice setting the depositions of plaintiffs Monica Sitter, Rebecca Maciewjewski and Kathrine Batesky for February 20-22, 2008. However, plaintiffs' counsel responded that she was not available this week and suggested that the depositions be completed during the month of March. Defendant then filed

granted in part. The Court previously extended fact discovery to February 26, 2008 and the close of all discovery on March 26, 2008. After defendant's last motion, the Court extended the discovery period to the current deadline of May 2, 2008. 2

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a motion requesting that the discovery deadline be extended to the current deadline of May 2, 2008, which the Court granted. Based upon the previous depositions of plaintiffs Mr. Filosa, Ms. Kemble and Ms. Sitter, it appears that policies regarding after hours work activity are set by local supervisors at individual duty stations. As a result, defendant intends to depose at least one additional plaintiff at each of the various work sites. Defendant previously deposed the lead plaintiffs, Mr. Filosa and Ms. Kimble, who are employed by the Hudson Valley VA facility in New York. In March 2008, defendant deposed plaintiff Monica Sitter who is employed by the VA facility in Madison, Wisconsin. Defendant previously coordinated with plaintiffs' counsel to attempt to schedule the depositions of plaintiffs at the two remaining VA facilities, North Chicago and Coatesville, Pennsylvania. Plaintiffs previously agreed to have plaintiffs Barbara Lesley and Marilyn Phillips, both of whom are employed by the North Chicago facility, deposed on April 10, 2008. The defendant made all arrangements to conduct these depositions including sending plaintiffs a deposition notice. However, plaintiffs' counsel sent an email to defendant's counsel at the end of the day on April 8th stating that neither of the witnesses were available and that the depositions would not go forward. Plaintiffs have not provided any alternate dates for these depositions and plaintiffs never provided an available date

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to depose a plaintiff employed by the Coatesville facility, despite repeated requests from the defendant in an effort to complete these depositions prior to the discovery cut-off. As a result, defendant requests that the discovery cut-off be extended to allow the defendant to complete these additional depositions. Defendant, therefore, proposes the following modified schedule: Fact Discovery Cut-Off Close of All Discovery Dispositive Motions July 2, 2008 July 2, 2008 July 18, 2008

Accordingly, defendant respectfully requests that the Court grant this motion to modify the deadlines in this case in accordance with the above schedule. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

JEANNE E. DAVIDSON Director

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s/ Todd M. Hughes TODD M. HUGHES Deputy Director

s/ Robert C. Bigler ROBERT C. BIGLER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 (202) 307-0315 May 1, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 1st day of May 2008, a copy of the foregoing "DEFENDANT'S MOTION FOR MODIFICATION OF DISCOVERY SCHEDULE" 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/ Robert C. Bigler