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

Case 1:04-cv-00710-SGB

Document 55

Filed 02/25/2008

Page 1 of 6

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 October 29, 2007 scheduling order. The proposed schedule modifications are set forth below. This is the defendant's fourth 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

1

Case 1:04-cv-00710-SGB

Document 55

Filed 02/25/2008

Page 2 of 6

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. This motion is necessary because pursuant to the class notification procedures, plaintiffs recently added an additional nineteen new plaintiffs to the action. In a letter dated October 4, 2007, the Government pointed out to plaintiffs that plaintiffs needed to amend their complaint so that depositions of the new plaintiffs could be completed prior to the October 31, 2007, discovery cut-off. On October 29, 2007, in response to the parties' previous joint motion, the Court extended the discovery deadline from October 29, 2007 to February 26, 2008 to allow the plaintiff to amend their complaint to add new plaintiffs and to allow the defendant to depose the newly added plaintiffs. On October 31, 2007, the Government again sent a letter to plaintiff urging them to amend their complaint to add all new plaintiffs to the action as soon as possible so that the Government would have an opportunity to depose the newly added plaintiffs prior to the Court's new discovery cut-off of February 26, 2008. As plaintiffs had not amended their complaint, on January 2, 2008, the Government sent plaintiffs another letter again

granted in part. The Court previously extended fact discovery to February 26, 2008 and the close of all discovery on March 26, 2008. 2

Case 1:04-cv-00710-SGB

Document 55

Filed 02/25/2008

Page 3 of 6

urging them to amend their complaint to add the new plaintiffs immediately so that the new plaintiffs could be deposed prior to the February 26, 2008, discovery cutoff. 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, 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. As a result, Defendant needs additional time to take the depositions of at least some of these new plaintiffs as many of them are located at different duty stations from the previously deposed plaintiffs. Based upon the previous depositions of the lead plaintiffs, Mr. Filosa and Ms. Kemble, 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. As the new plaintiffs were not added to the complaint until January 31, 2008, additional time is needed to allow the defendant to depose these newly added plaintiffs.

3

Case 1:04-cv-00710-SGB

Document 55

Filed 02/25/2008

Page 4 of 6

Defendant, therefore, proposes the following modified schedule: Fact Discovery Cut-Off Close of All Discovery May 2, 2008 May 2, 2008

Defendant is not requesting that any other dates in the Court's October 29, 2007 scheduling order be delayed and defendant does not believe that the trial date needs to be changed. Accordingly, defendant respectfully requests that the Court grant this motion to modify the discovery deadlines in this case in accordance with the above schedule. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

JEANNE E. DAVIDSON Director

4

Case 1:04-cv-00710-SGB

Document 55

Filed 02/25/2008

Page 5 of 6

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 February 25, 2008 Attorneys for Defendant

5

Case 1:04-cv-00710-SGB

Document 55

Filed 02/25/2008

Page 6 of 6

CERTIFICATE OF FILING I hereby certify that on this 25th day of February 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