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

Case 1:99-cv-04451-ECH

Document 222

Filed 05/23/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) STONE, ERROL L. & SUSAN H., ) In their own right and as Trustees of the ) Susan H. Stone Trust and the Errol L. Stone ) Trust, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ) EUGENE J. FRETT, Individually and ) as trustee of the Victor J. Horvath and Frances ) B. Horvath Trust, and ) ) DONNA P. FRETT, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,

No. 99-4451 L Judge Emily C. Hewitt

No. 04-277 L Judge Emily C. Hewitt

No. 05-1353L Judge Emily C. Hewitt

UNOPPOSED MOTION TO ENLARGE POST-TRIAL BRIEFING DEADLINE

Case 1:99-cv-04451-ECH

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Filed 05/23/2007

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Pursuant to this Court's order dated May 17, 2007, the parties have been ordered simultaneously to file their opening post-trial briefs on or before the first business day that occurs nineteen days after the last day of trial, currently scheduled to be Friday, July 6, 2007. The parties are to file their response briefs on or before the first business day that occurs thirtyone days after the last day of trial, currently scheduled to be Wednesday, July 18, 2007. For the financial and personnel-related reasons discussed below, the defendant requests an enlargement of time, up to and including Wednesday, August 29, 2007, for the parties to file their opening post-trial briefs. Following the time frame originally set by the Court, the parties' response briefs would then be due on or before Monday, September 10, 2007. Plaintiffs do not oppose this motion. DISCUSSION I. The Parties May Not Have Access To The Trial Transcript Until July 16, 2007 As this Court is aware, the Heritage Reporting Corp. ("Heritage") will be responsible for producing the transcript of the trial. Defendant's standard policy would be to order regular service from Heritage, guaranteeing receipt of the trial transcript within 30 days. Defendant has been in contact with Heritage to determine the price difference between next-day, five-day, 15day and 30-day turnaround service, and finds expedited service to be cost-prohibitive. Because of current division-wide budget deficits, Defendant's office management has requested that we follow standard office policy of ordering the trial on a 30-day turnaround agreement with Heritage. Under such an agreement, Defendant could not expect to obtain the trial transcript until between July 13 and 16, 2007, depending upon the last day of trial. Because Defendant will be unable to begin reviewing and digesting the trial transcript before that time, several

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Case 1:99-cv-04451-ECH

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additional weeks will be necessary before Defendant could be prepared to submit argument based upon the facts adduced at trial. II. Additional Time Is Necessary To Accommodate Counsel's Schedules Even if the parties were to have access to the trial transcript immediately after the conclusion of trial, additional time would be necessary to complete post-trial briefs. Knowing that the trial of this matter would be scheduled for early June, counsel have been clearing their calendars for the time leading up to, and including, the two-week out-of-town trial. It has been necessary to schedule work for other cases, and personal vacation time, to take place after the conclusion of trial. Consequently, all counsel involved in this matter will have significant demands upon their time in the weeks following trial. Mr. Petrie, who will bear primary responsibility for the drafting of the Government's brief, is scheduled for work-related travel in connection with the Tribal Trust cases from June 25 through 29, 2007. He will also be responsible for coordinating the preparation of expert reports in the consolidated cases of Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States, No. 4582-79 (CFC), and Arapaho Indian Tribe of the Wind River Reservation, Wyoming v. United States, No. 4592-79 (CFC), currently due on July 26, 2007. In addition, Mr. Petrie has planned a family vacation from July 22 through July 29, 2007. Mr. Segrest, agency counsel who has been working on this case from its inception, and whose involvement in post-trial briefing will be crucial, has scheduled a family vacation during the first two weeks of July. As this Court is aware, it is necessary that counsel coordinate with agency counsel before any briefing may be filed with the Court.

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Case 1:99-cv-04451-ECH

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Ms. Herrmann, who will assist in the drafting of the Government's brief, is required to complete fact discovery in Trunk et al. v. United States, No. 06 CV 1597 (S.D. Cal.), by June 22, 2007. Trial of factual issues in that matter is scheduled to take place during the week of August 13, 2007, and briefing of legal issues is expected to be due immediately thereafter. Mr. Pritchard, who will also assist in the drafting of the Government's brief, must coordinate the preparation of expert reports for Heritage Minerals v. United States, No. 03-2228 (CFC), currently due July 16, 2007, and for Carl Junction v. United States, No. 05-03 (CFC), currently due July 20, 2007. The parties are mindful of the Court's requirement that exhibits and testimony be specifically referred to in post-trial briefing. We wish to ensure that the trial transcript has been fully digested, and the facts adduced at trial fully examined, before submitting post-trial briefs in this matter. A post-trial briefing deadline of August 29, 2007, would allow counsel to meet the demands of other cases, which have been postponed in favor of completing the upcoming trial, and simultaneously complete the detailed, well-documented post-trial briefing envisioned by the Court.

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Case 1:99-cv-04451-ECH

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CONCLUSION For the foregoing reasons, the parties request that the Court grant this joint motion to enlarge the post-trial briefing deadline, up to and including August 29, 2007. Dated: May 23, 2007 Respectfully submitted, s/ Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Tele: 303-844-1369 Fax: 303-844-1350 [email protected] HEIDE L. HERRMANN Environment and Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 202-305-3315 (phone) 202-305-0274 (fax) [email protected]

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CERTIFICATE OF SERVICE I certify that I have served a copy of the UNOPPOSED MOTION TO ENLARGE POST-TRIAL BRIEFING DEADLINE" by electronic filing with the Unites States Court of Federal Claims on the 23rd day of May, 2007 on: John Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Counsel for Banks Plaintiffs **************** Drew Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, NW Suite 600, East Tower Washington, DC 20005 Counsel for Stone Plaintiffs **************** Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Counsel for Frett Plaintiffs ****************

s/Terry M. Petrie TERRY M. PETRIE

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