Free Response to Motion - District Court of Federal Claims - federal

Case 1:02-cv-01768-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CHIANELLI BUILDING CORPORATION, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. Civil Action No. 02-1768C (Judge Emily C. Hewitt)

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME TO CONDUCT DISCOVERY Respectfully, Plaintiff does not agree that an enlargement of time to conduct discovery is necessary or appropriate, or that the reasons suggested therefore by Defendant arise to the required showing of good cause under RCFC Rule 16(b)(7). accommodation to newly assigned defense counsel, however, plaintiff's counsel has agreed Plaintiff would not object to an extension of forty-five days, so long the enlargement is mutual and does not affect prior cutoffs. This action was filed in December 2002 and Defendant's Answer served in January 2003, over one year ago. Since, the As an

parties have served, responded to, and answered various discovery, with no objections outstanding before the Court. The

current scheduling order was entered on June 18, 2003, and the periods therein extended beyond the timeframes suggested by Plaintiff to accommodate the advised tasking of then primary 1

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defense counsel, Ms. Ohta, to various immigration duties. During that tasking, however, she remained counsel of record herein and was to have continued, among other things, handling and coordination of discovery for this case, which she did, including with respect to document exchanges. Plaintiff has no control over Defendant's decision to reassign primary responsibility of this action from Ms. Ohta to Ms. Moore. However, that decision as well as Defendant's

decisions regarding what discovery to serve or conduct before or since that change in responsibility - and all resulting affects thereof - is of Defendant's own cause, not Plaintiff's, and is not good cause, alone, for the requested enlargement. Similarly, the other reasons expressed by Defendant as being good cause for the moved enlargement do not warrant the enlargement. Defendant's concerns with the requested DCAA audit have only just arisen. Defendant's intent to seek an audit was

discussed early on, including prior status conference calls. Since, the audit was initiated and contact made between the auditor and representatives for both Plaintiff and its subcontractor, ATS. Ms. Moore's recent suggestion after making

appearance of non-cooperation with the DCAA auditor was the first notification of such to Plaintiff's counsel, and - while such non-cooperation is not agreed - since, counsel have been 2

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working to coordinate additional information exchange as the auditor may request (and agreed appropriate after such advises). Again, however, if there has been delay with respect to the audit, such delay has been caused by the government's delay in communicating related concerns through counsel. Finally, while Plaintiff is encouraged by counsel's stated anticipation that the parties will renew settlement discussions, and looks forward to such opportunities, Plaintiff is concerned that granting the enlargement could actually deter, not assist, settlement by prolonging the action, increasing the parties' costs, and similar judicially economic concerns. The parties

have already previously engaged in a detailed settlement conference, exchanging much information before and during the same. Settlement was not reached that date, but subsequent Many

discussions proceeded such that settlement seemed likely.

other options exist to encourage further discussion, and hopeful settlement, without the need for additional delay of this action. For the foregoing reasons, Plaintiff does not agree that enlargement of the discovery cutoffs as moved is warranted. As

agreed with opposing counsel, however, Plaintiff does not object to a forty-five day extension if the Court concludes Defendant's motion has merit, and so long as the enlargement is mutual and does not affect prior cutoffs. 3

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Respectfully submitted, Done this date: CHIANELLI BUILDING CORPORATION /s/ Neil S. Lowenstein By: ____________________________ Vandeventer Black LLP 500 World Trade Center Norfolk, VA 23510 Telephone: 757.446.8600 Facsimile: 757.446.8670 Email: [email protected] Attorney for Plaintiff Of Counsel: William E. Franczek David W. Lannetti Vandeventer Black LLP 500 World Trade Center Norfolk, VA 23510 Telephone: 757.446.8600 Facsimile: 757.446.8670 CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing discovery request upon the United States as follows: Lauren S. Moore, Esquire Commercial Litigation Branch Civil Division United States Department of Justice Washington, D.C. 20530 Attn: Classification Unit 10th Floor, 1100 L Street, N.W. Washington, D.C. 20530 Dated: February 17, 2004 /s/ Neil S. Lowenstein ____________________________

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