Free Motion for Extension of Time to File Answer - District Court of Federal Claims - federal

Case 1:02-cv-01460-LB

Document 45

Filed 11/03/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS HERMES CONSOLIDATED, INC., Doing Business As Wyoming Refining Company, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 02-1460C (Judge Block)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Pursuant to RCFC 1 and 26, defendant respectfully requests that the period in which to respond to the amended complaint be enlarged from November 10, 2004, to, and including, 28 days after the court issues its decision in Tesoro Hawaii Corporation and Hermes Consolidated, Inc. v. United States, No. 04-5064 (Fed. Cir.), the interlocutory appeal in this case. Plaintiff does not oppose this motion. On October 27, 2004, with defendant's concurrence, plaintiff filed an amended complaint for the purpose of adding a claim that was the subject of a contracting officer's final decision dated November 3, 2003. The claim is similar to the others presented in this lawsuit. The letter accompanying the amended complaint stated that the parties had agreed that, with the Court's concurrence, defendant's duty to respond to the complaint would be deferred until the interlocutory appeal in this case was resolved. RCFC 1 requires that this Court's rules be "construed and administered for the just, speedy, and inexpensive determination of every action." We make this request, because, if the appeal were not pending, we would respond to the complaint with a motion for summary judgment, just as we responded to the original complaint. However, because the issues presented by the additional claim

Case 1:02-cv-01460-LB

Document 45

Filed 11/03/2004

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are the same issues being considered on appeal, the law is not sufficiently settled to permit us to file any such response. Were we to do so before the Federal Circuit acts, the parties would be faced with the prospect of rewriting their briefs to consider the Federal Circuit's decision. The Court too would be hampered by the lack of settled law, and would be unable to decide, with authority, questions of virtually any consequence to the parties. In short, proceeding at this point would be contrary to the requirements of RCFC 1. For these reasons, defendant respectfully requests that the Court enlarge the period in which to respond to the amended complaint from November 10, 2004, to, and including, 28 days after the decision is issued in Tesoro Hawaii Corporation and Hermes Consolidated, Inc. v. United States, No. 04-5064 (Fed. Cir.).

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Case 1:02-cv-01460-LB

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Senior Trial Counsel KYLE CHADWICK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., 8th Floor Washington, D.C. 20530 Tele: (202) 616-2311 Fax: (202) 353-7988 Attorneys for Defendant November 3, 2004

OF COUNSEL: BERNARD A. DUVAL Counsel HOWARD M. KAUFER Assistant Counsel Office of Counsel Defense Energy Support Center Ft. Belvoir, VA

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Case 1:02-cv-01460-LB

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Filed 11/03/2004

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CERTIFICATE OF FILING I hereby certify that on November 3, 2004, a copy of the foregoing document 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/ Steven J. Gillingham