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

Case 1:99-cv-00447-CFL

Document 279

Filed 04/09/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) No. 99-447C ) No. 03-2626C ) (Judge Charles F. Lettow) ) ) ) ) ) ) ) )

BOSTON EDISON COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ENTERGY NUCLEAR GENERATION CO., Plaintiff, v. THE UNITED STATES, Defendant.

PLAINTIFF BOSTON EDISON COMPANY'S MOTION TO STRIKE PLAINTIFF ENTERGY NUCLEAR GENERATION COMPANY'S MOTION FOR LEAVE TO FILE DOCUMENTS UNDER SEAL ELECTRONICALLY AND PLAINTIFF ENTERGY NUCLEAR GENERATION COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Boston Edison Company ("Boston Edison") hereby moves to strike Plaintiff Entergy Nuclear Generation Company's ("Entergy Nuclear") April 6, 2007 Motion for Leave to File Documents Under Seal and the Motion for Partial Summary Judgment related thereto. The February 26, 2007 Scheduling Order issued by this Court prohibits the filing of pre-trial dispositive motions. Entergy Nuclear filed its April 6, 2007 motions in blatant contravention of the Court's Scheduling Order. On February 22, 2007 the parties filed a Joint Motion to Amend Scheduling Order as instructed by this Court during the January 11, 2007 hearing related to scheduling issues. The Joint Motion set forth a number of proposed dates and deadlines for various pre-trial submissions. One of the enumerated dates was a "Deadline for the filing of dispositive motions by any party." In a footnote to this line item, the parties made clear that they had different

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Case 1:99-cv-00447-CFL

Document 279

Filed 04/09/2007

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positions with respect to dispositive motions. In particular, Boston Edison expressly opposed the filing of dispositive motions prior to trial and raised its objections with respect to the deadline related to such motions. "While Entergy Nuclear believes that it should be entitled to file a dispositive motion in this case, Boston Edison opposes the inclusion of a deadline for the filing of dispositive motions prior to trial." Joint Motion to Amend Scheduling Order at n. 1. Boston Edison pointed out that there had already been extensive motions practice in this case, and that dispositive motions at this juncture would serve only to effect further delay, and would be a waste of the parties' and the Court's resources. Id. On February 26, 2007, this Court entered a revised scheduling Order. The scheduling Order adopted all of the dates proposed by the parties with one exception: It omitted any date for the filing of dispositive motions. Boston Edison understood this omission to reflect a purposeful decision on the part of this Court to foreclose the parties' ability to file pre-trial dispositive motions, as requested by Boston Edison in footnote 1 to the February 22, 2007 Joint Motion to Amend Scheduling Order. Entergy Nuclear's April 6, 2007 motion, and the Motion for Partial Summary Judgment to which it relates, explicitly disregard this Court's decision. As Boston Edison articulated in the February 22, 2007 Joint Motion to Amend Scheduling Order, dispositive motions practice prior to the June 4, 2007 commencement of trial will serve only to duplicate prior unsuccessful efforts to derail trial in this matter and will waste the resources of the parties and the Court. This wastefulness is exacerbated as Entergy Nuclear's motion is one for only partial summary judgment, meaning that portions of this matter will go forward to trial regardless of any ruling on the motion.

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Case 1:99-cv-00447-CFL

Document 279

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For the reasons set forth above, Entergy Nuclear's anticipated dispositive motion should not be considered by this Court. The Court should strike Plaintiff Entergy Nuclear Generation Company's April 6, 2007 Motion For Leave To File Documents Under Seal Electronically as well as Plaintiff Entergy Nuclear Generation Company's Motion For Partial Summary Judgment.

Dated: April 9, 2007

Respectfully submitted,

By:

s/ Richard J. Conway Richard J. Conway DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006-5403 Tel: (202) 420-2200 Fax: (202) 420-2201 Counsel of Record for Boston Edison Company

Of Counsel: Bradley D. Wine Nicholas W. Mattia, Jr. Bernard F. Sheehan DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006-5403

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Case 1:99-cv-00447-CFL

Document 279

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CERTIFICATE OF ELECTRONIC FILING I hereby certify that on April 9, 2007, a copy of the foregoing "Plaintiff Boston Edison Company's Motion To Strike Plaintiff Entergy Nuclear Generation Company's Motion For Leave To File Documents Under Seal Electronically And Plaintiff Entergy Nuclear Generation Company's Motion For Partial Summary Judgment" 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/ Bradley Wine

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