Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:98-cv-00614-JFM

Document 310

Filed 10/13/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SOUTHERN NUCLEAR OPERATING COMPANY; ALABAMA POWER COMPANY; and GEORGIA POWER COMPANY, Plaintiffs, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 98-614C (Senior Judge Merow)

DEFENDANT'S UNOPPOSED MOTION FOR AN ENLARGEMENT OF TIME, OUT OF TIME, TO RESPOND TO PLAINTIFFS' MOTION TO FILE AN AMENDED AND SUPPLEMENTAL COMPLAINT Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests an enlargement of time, out of time, of 38 days, to and including November 18, 2005, to file its response to "Plaintiffs' Motion To File An Amended And Supplemental Complaint Under RCFC 15(a) And (d) To Update The First Amended Complaint For Post-Filing Damages And To Allow Post-2004 Damages To Be Claimed In A Separate Complaint." The Government's response to the plaintiffs' motion was due on October 11, 2005, but, as a result of the numerosity of activities surrounding the trial in this case scheduled to begin on October 17, 2005, counsel for the Government inadvertently failed to calendar the due date for the Government's response. Counsel for defendant has filed this motion for an enlargement two days out of time, immediately after recognizing this inadvertent error. Counsel for plaintiffs, M. Stanford Blanton, has represented that the plaintiffs do not oppose this motion or the Government's request to file out of time. As the Court is aware from the parties' discussion at the pre-trial conference in this case, our analysis of the issues that their motion raises and of the implications of the motion is continuing, particularly in light of the recent decision of the United States Court of Appeals for

Case 1:98-cv-00614-JFM

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the Federal Circuit in Indiana Michigan Power Co. v. United States, No. 04-5122 (Sept. 9, 2005). We believe that it may be appropriate to address at least some of those issues in our response to the plaintiffs' motion. However, as the Court is aware, the parties are currently engaged in preparation for the trial set to commence on October 17, 2005. As a result, counsel for the Government is occupied with those pretrial preparations. The plaintiffs' motion, while relevant post-trial, will not effect the scope of damages to be presented at trial, pursuant to the discussion of the parties and the Court at the pre-trial conference in this case. Therefore, resolution of the motion prior to trial is unnecessary. Second, additional time is needed to complete the internal review and analysis of the plaintiffs' motion to determine the Government's position on these significant issues. The schedules of several necessary reviewers have affected our ability to complete our analysis of the issues raised by this motion. Further, because counsel for the Government will be involved in the trial of this matter for a two-week period beginning October 17, 2005, counsel is unlikely to have sufficient time to continue his evaluation of the plaintiffs' motion during that period of time. Accordingly, our request will defer the Government's response to the plaintiffs' motion until the trial of this case has concluded. The requested enlargement will not affect any of the other deadlines set by the Court for pretrial activities or upon the trial of this matter. For the foregoing reasons, we respectfully request that the Court grant this request for an enlargement until after the completion of trial. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director -2-

Case 1:98-cv-00614-JFM

Document 310

Filed 10/13/2005

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OF COUNSEL: JANE K. TAYLOR Office of the General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 STEPHEN FINN HEIDE L. HERRMANN Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

s/ John C. Ekman JOHN C. EKMAN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 353-0897 Fax: (202) 307-2503 Attorneys for Defendant

October 13, 2005

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Case 1:98-cv-00614-JFM

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CERTIFICATE OF FILING I hereby certify that on this 13th day of October, 2005, a copy of foregoing "DEFENDANT'S UNOPPOSED MOTION FOR AN ENLARGEMENT OF TIME, OUT OF TIME, TO RESPOND TO PLAINTIFFS' MOTION TO FILE AN AMENDED AND SUPPLEMENTAL COMPLAINT" 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.