Free Motion for Leave to File Out of Time - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS METRICA, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 04-636C (Judge Block)

DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO FILE, OUT OF TIME, A MOTION TO AMEND THE SCHEDULING ORDER Defendant respectfully requests leave to file, out of time, a motion to amend the scheduling order, as follows. Defendant

requests the Court to enlarge by 49 days, to and including December 16, 2005, the date by which defendant must file its dispositive motion. That motion is presently due by October 28,

2005, the Court having granted the parties' joint motion to amend the scheduling order and defendant's previous two unopposed motions to amend the scheduling order. This is the defendant's

third request for an enlargement of time for this purpose. As reported in the Government's previous motion, the parties are engaged in settlement discussions. The parties have made

material progress, but have not yet completed this process. Government counsel has sent plaintiff's counsel a detailed letter in which he presented his analysis of the merits of this litigation, and stated an amount that he would recommend, to his superiors, that the United States pay plaintiff to settle this

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litigation.1

Plaintiff's counsel has informed Government counsel

that he anticipates presenting a counterproposal to the Government in the near future. The time requested is necessary, therefore, for the parties to continue their settlement negotiations and, if the negotiations are successful, for the parties to execute the paper work needed to complete the settlement. The time requested is

also necessary, if the negotiations are unsuccessful, for the Government to prepare its dispositive motion. Finally, the Government requests leave to file this motion out of time. Government counsel inadvertently missed the October

28, 2005, due date for the Government to file its dispositive motion or move to amend the scheduling order, because he has been traveling a lot since late September and was out on travel defending depositions the week of October 24, 2005.2 In

addition, Government counsel has been required to file a large number of briefs recently, including the Government's brief in Brown v. Department of Defense, No. 05-3319 (Fed. Cir.), which

Government counsel does not possess authority to settle this litigation. Rather, he possesses authority to negotiate upon behalf of the United States and to recommend a settlement to his superiors, who possess authority to accept a settlement upon behalf of the Attorney General. Government counsel was out on travel September 27-30, 2005; October 4-5, 2005; October 11-14, 2005; and October 25-28, 2005. Government counsel will also be out on travel taking depositions November 13-18, 2005. -22

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was filed on October 17, 2005; the Government's brief in Brown v. Department of Veterans Affairs, No. 05-3320 (Fed. Cir.), which was filed on October 17, 2005; the Government's reply brief in Liberty Mutual Insurance Co. v. United States, No. 04-254C (Fed. Cl.), which is due, after two enlargements totaling 30 days, on November 16 2005; and the Government's brief in Jentoft v. United States, No. 05-5125 (Fed. Cir.), which is due, after three enlargements totaling 72 days, on November 17, 2005. For the foregoing reasons, the Government respectfully requests that the Court grant this unopposed motion to amend the scheduling order. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director

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s/ Thomas D. Dinackus by Ronald G. Morgan THOMAS D. DINACKUS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, DC 20530 Tele: (202) 307-6289 Fax: (202) 514-7969 Attorneys for Defendant OF COUNSEL: MAJ ANISSA N. PAREKH U.S. Army Legal Services Agency November 14, 2005

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NOTICE OF FILING I hereby certify that on November 14th, 2005, a copy of the foregoing "DEFENDANT'S UNOPPOSED MOTION FOR LEAVE TO FILE, OUT OF TIME, A MOTION TO AMEND THE 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. system. Parties may access this filing through the Court's

/s Thomas D. Dinackus by Ronald G. Morgan