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

Case 1:04-cv-00710-SGB

Document 51

Filed 10/25/2007

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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)

PLAINTIFFS' AND DEFENDANT'S JOINT 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"), the parties respectfully request the Court to modify the discovery deadlines ("discovery deadlines") established by the Court's January 12, 2007 scheduling order and the Court's order of August 7, 2007. The proposed schedule modifications are set forth below. This is the parties' second joint motion for this purpose.1

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

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This motion is necessary because pursuant to the class notification procedures, plaintiffs recently identified an additional nineteen new plaintiffs that will be added to the action. On August 7, 2007, in response to the parties' previous joint motion, the Court extended the discovery deadline from July 31, 2007 to October 29, 2007. During this time period, on October 2, 2007, defendant took the deposition of the only two plaintiffs that are identified in the complaint, Susan Kemble and John Filosa. During the deposition, plaintiffs' counsel stated that, pursuant to the class notification procedures, additional plaintiffs had come forward to join the lawsuit. Defense counsel requested a list of the names of the new plaintiffs. In a letter dated October 8, 2007, plaintiffs' counsel identified the additional 19 plaintiffs that plaintiffs' counsel intends to add to the lawsuit. 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 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

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 granted in part. 2

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new plaintiffs have just been identified on October 8, 2007 and have not yet been added to the complaint, additional time is needed to allow the defendant to depose these newly added plaintiffs. Furthermore, while plaintiffs have completed some class-certification related discovery, plaintiffs intend to conduct additional discovery in preparation for trial. Lastly, both parties are interested in discussing settlement once additional information is discovered regarding the contentions of the newly added plaintiffs. Extending the discovery period will allow the parties to discuss possible settlement which may eliminate the need for a trial. The parties, therefore, propose the following modified schedule: Fact Discovery Cut-Off Dispositive Motions Due and Close of All Discovery February 26, 2008 March 26, 2008

Accordingly, the parties respectfully request that the Court grant this joint motion to modify the discovery deadlines in this case in accordance with the above schedule and that all subsequent dates be enlarged as well.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ Fran L. Rudich FRAN L. RUDICH SETH LESSER Locks Law Firm, PLLC 110 East 55th Street New York, New York 10022 (212) 838-3333 Attorneys for Plaintiffs

JEANNE E. DAVIDSON Director

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 October 25, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 25th day of October 2007, a copy of the foregoing "PLAINTIFFS' AND DEFENDANT'S JOINT 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