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

Case 1:98-cv-00720-GWM

Document 455

Filed 01/15/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PRECISION PINE & TIMBER, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-720C (Judge George W. Miller)

DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME Pursuant to Rule 6(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests a 12-day enlargement of time, to and including January 30, 2008, within which to respond to plaintiff's motion for reconsideration and plaintiff's subsequent filing regarding purported mathematical errors in the Court's decision. The United States' responses are currently due January 18, 2008. This is the United States' first request for an enlargement of time for this purpose. We have discussed this motion with counsel for plaintiff, Alan I. Saltman, who has informed us that Precision Pine will not oppose this motion. BACKGROUND This Court conducted a 24-day trial on damages in May and June 2005. On September 19, 2006, the Court issued an Opinion and Order that resolved various legal issues. Order & Opinion (Sept. 19, 2006). On September 14, 2007, the Court issued a second Opinion and Order that resolved additional issues, concluded that Precision Pine had failed to meet its burden of proof, developed a new methodology for calculating lost profit damages, and ordered Precision Pine to file and serve "a revised damages calculation consistent with the Court's findings" within 60 days. Order and Opinion at 41-45, 76 (Sept. 14, 2007).

Case 1:98-cv-00720-GWM

Document 455

Filed 01/15/2008

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After seeking two enlargements of time, on December 7, 2007, Precision Pine filed a nearly 300-page document containing four different damages calculations. Pl.'s Revised Damages Calculations (filed Dec. 7, 2007). At the same time, Precision Pine filed a motion for reconsideration concerning certain aspects of the Court's September 14, 2007 decision. Pl.'s Mot. For Reconsideration (filed Dec. 7, 2007). Upon receiving these filings, the United States requested that the Court hold a status conference to discuss further proceedings. On December 17, 2007, after holding the requested status conference, the Court directed Precision Pine to submit on December 21, 2007 a filing that explains the "purported mathematical errors" in the Court's decision, and instructed the United States to file a response regarding both the purported mathematical errors and Precision Pine's motion for reconsideration on January 18, 2008. Order of Judge George W. Miller at 1 (Dec. 17, 2007). On December 21, 2007, Precision Pine submitted a "notice of filing" to which was attached a declaration from Robert Ness ­ the accountant used by Precision Pine at the 2005 trial ­ and a spreadsheet providing a "corrected" harvesting and milling schedule. Pl.'s Notice of Filing (Dec. 21, 2007). DISCUSSION After receiving Precision Pine's most recent filing, which includes a declaration from the accountant who testified upon Precision Pine's behalf at trial, the United States concluded that it required an accountant to review the Ness declaration and other material submitted by Precision Pine. Because the accountant who testified upon behalf of the United States at trial, Wayne

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Case 1:98-cv-00720-GWM

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Filed 01/15/2008

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Moosman, is no longer available,1 the United States has retained a new expert accountant to provide assistance in this matter. The United States' newly-retained accountant has extensive experience in the forest products industry, but requires time to review the material presented by Precision Pine and to familiarize himself generally with this matter. Moreover, due to a previous commitment, the United States' accountant will be testifying at a trial on January 15 and 16, 2008. In order to provide the United States sufficient time to review and respond to Precision Pine's assertions, the United States respectfully requests that the Court grant a 12-day enlargement of time to file a response to the Ness declaration and Precision Pine's motion for reconsideration. CONCLUSION For these reasons, the United States respectfully requests that the Court grant this motion for a 12-day enlargement of time, to and including January 30, 2008, within which to file a response to the Ness declaration and Precision Pine's motion for reconsideration. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Bryant G. Snee BRYANT G. SNEE Assistant Director

Mr. Moosman prepared his analysis during a period when he was employed by the United States Forest Service. Shortly before trial in 2005, Mr. Moosman left the Forest Service to take a position with the Department of Energy. As a result, Mr. Moosman is no longer available to provide services in connection with this matter. 3

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Case 1:98-cv-00720-GWM

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s/ David A. Harrington DAVID A. HARRINGTON Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 307-0277 January 15, 2008 Attorneys for Defendant

Case 1:98-cv-00720-GWM

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CERTIFICATE OF FILING I hereby certify that on the 15th day of January 2008, a copy of "DEFENDANT'S UNOPPOSED MOTION FOR ENLARGEMENT OF TIME" 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/ David A. Harrington