Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:99-cv-00447-CFL

Document 221

Filed 04/01/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BOSTON EDISON COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 99-447C (Judge Lettow)

DEFENDANT'S MOTION TO SCHEDULE THE DUE DATE FOR THE GOVERNMENT'S ANSWER AND RESPONSES TO WRITTEN DISCOVERY REQUESTS Defendant, the United States, respectfully requests that the Court order that defendant's response to the plaintiff's complaint in this case will be due on April 11, 2005, and that its responses to plaintiff's written discovery requests will be due on April 15, 2005. By order dated September 7, 1999, prior to the assignment of this case to the current presiding judge, the Court suspended the Government's obligation to respond to plaintiff's complaint until further order of the Court. By order dated November 24, 2004, the Court suspended the Government's obligation to respond to plaintiff's written discovery requests until after the Court had ruled upon pending summary judgment motions. On February 15, 2005, the Court issued an order resolving summary judgment briefing relating to various issues in this case. Since the Court issued its February 15, 2005 decision, plaintiff, Boston Edison Company ("Boston"), has inquired about the status of the Government's answer, as well as the Government's responses to written discovery requests that Boston had served during the pendency of the summary judgment briefing but that the Court. In light of the Court's September 7, 1999 order, we have deferred the filing of our answer. In light of the Court's recent decision in Entergy Nuclear Generation Co. v. United States, No. 03-2626C (Fed.

Case 1:99-cv-00447-CFL

Document 221

Filed 04/01/2005

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Cl.), on March 3, 2005, a case that involves the same Standard Contract and nuclear reactor as those at issue in this case, it appears appropriate to seek, at minimum, to progress those cases on a parallel track. In Entergy Nuclear, the Court has ordered the parties to submit a joint status report regarding discovery and further scheduling proposals by April 11, 2005. Because we hope to develop a plan for the progression of this case in conjunction with the Entergy Nuclear case, and because certain motions that might be determined to be appropriate as a means for coordinating the two cases are generally to be filed along with the answer, see, e.g., RCFC 14(b)(2),1 we request that the Government be permitted to file its answer in this case on the same day that the Entergy status report is due. In addition, although we anticipate that we will have to take issue with the breadth and relevance of many of Boston's written discovery requests, we respectfully request that we be permitted to continue our review of those requests and to respond to them shortly after we have responded to Boston's complaint and suggested further proceedings in Entergy Nuclear. Prior counsel of record in this case, Stefan Shaibani, has left the Department of Justice, and the new counsel of record for the Government is currently in trial in Sacramento Municipal Utility District v. United States, No. 98-488C (Fed. Cl.) (Braden, J.), which is currently scheduled to conclude on April 1, 2005. Counsel's activities in that case, his need further to investigate the issues in this case, and the breadth of plaintiff's discovery requests preclude the Government from being able to complete its discovery responses prior to that date. We are still evaluating the various steps that the Government can take to protect its interests against duplicative claims and potential duplicative damages awards. As a result, we are not suggesting that we will file a motion pursuant to RCFC 14(b) in this case. However, because we are still evaluating the various means of protecting the Government's interests, we want to ensure that all available means of protection are available to us. 2
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Case 1:99-cv-00447-CFL

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For the foregoing reasons, we respectfully request that the Court grant this motion regarding the establishment of due dates for the Government's responses to Boston's complaint and written discovery requests. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 s/ Alan J. Lo Re ALAN J. LO RE Senior Trial Counsel U.S. Department of Justice Civil Division Commercial Litigation Branch 1100 L Street, N.W. ATTN: Classification Unit, 8th Floor Washington, D.C. 20530 Tel: (202) 514-7300 Fax: (202) 307-2503 Attorneys for Defendant

April 1, 2005

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Case 1:99-cv-00447-CFL

Document 221

Filed 04/01/2005

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CERTIFICATE OF FILING I hereby certify that, on April 1, 2005, a copy of the foregoing "DEFENDANT'S MOTION TO SCHEDULE THE DUE DATE FOR THE GOVERNMENT'S ANSWER AND RESPONSES TO WRITTEN DISCOVERY REQUESTS" 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/ Harold D. Lester, Jr.