Free Motion for Leave to Exceed Page Limit - District Court of Federal Claims - federal

Case 1:98-cv-00484-JPW

Document 215

Filed 03/31/2004

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) NORTHERN STATES POWER COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

No. 98-484C (Senior Judge Wiese)

NORTHERN STATES POWER COMPANY'S MOTION FOR LEAVE TO EXCEED PAGE LIMIT Pursuant to RCFC 5.2(b)(2), Plaintiff Northern States Power Company ("NSP"), through its undersigned counsel, requests leave of this Court to exceed the 30-page limitation in RCFC 5.2(b)(2) for its Reply in Support of its Cross-Motion for Partial Summary Judgment on the Acceptance Rate and Response to the Government's Supplemental Brief, which brief electronically accompanies this motion as an attachment. NSP requests that the page limit be enlarged from 30 to 50 pages. Counsel for the Government has represented that the Government will not oppose this motion. NSP requests leave to exceed the page limit to allow NSP to fully respond to (1) the Government's combined opposition and reply brief on the acceptance rate issue and (2) the Government's more recent supplemental brief on the acceptance rate issue. The Government's combined opposition and reply brief was 81 pages in length, exceeding the requirements of RCFC 5.2(b)(2) by 51 pages. (Its supplemental brief was an additional eight pages.) Furthermore, the Government's combined opposition and reply brief includes responses to

Case 1:98-cv-00484-JPW

Document 215

Filed 03/31/2004

Page 2 of 3

various arguments never made by NSP1 and recharacterizations of the Government's previous arguments (not to mention the introduction of new evidence from the 760-page supplemental appendix).2 Thus, to fully respond to the Government's lengthy brief and new arguments (as well as the supplemental brief), NSP needs to exceed the 30-page limit by 20 pages.

1

The Government's reply brief responds to various arguments made by other utilities in addition to responding to NSP's arguments. NSP has done its best to assess these other utilities' arguments (and whether and how to defend them) without the benefit of having copies of all the materials submitted by every utility.

NSP objects to the use of some of these documents as irrelevant to this case and prejudicial. For example, in its supplemental appendix, the Government has attached deposition testimony taken by the Government of Messrs. Rudolph Grube and Robert Jordan in damages proceedings in Yankee Atomic Elec.Co. v. United States, No. 98-126C (Merow, J.), Maine Yankee Atomic Power Co. v. United States, No. 98-474C (Merow J.), and Connecticut Yankee Atomic Power Co. v. United States, No. 98-154C (Merow, J.) ("Yankee cases"). See Government Supplemental Appendix at 541-49. It is unclear to NSP exactly who Messrs. Grube and Jordan are, why the Government called them as witnesses, and why their testimony is relevant to the cross-motions for summary judgment on the acceptance rate in this case. The Government's reliance on these depositions contradicts the Government's decision not to take depositions in the coordinated discovery proceedings. NSP acknowledges that it used selected deposition transcript excerpts of the Government's witnesses deposed in the Yankee cases' damages proceedings. However, the Government was given notice of all such depositions, had the opportunity to protect the Government's interests by attending these depositions and, presumably, retains the right to object to the relevance of such depositions to the Yankee cases. No such rights were accorded NSP with respect to the Grube and Jordan depositions. 2

2

Case 1:98-cv-00484-JPW

Document 215

Filed 03/31/2004

Page 3 of 3

For the foregoing reasons, NSP respectfully requests that the Court grant NSP's motion to exceed the page limitation by 20 pages.

Dated: March 31, 2004

Respectfully submitted,

s/Alex D. Tomaszczuk by s/Michael G. Lepre Alex D. Tomaszczuk SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Northern States Power Company Of Counsel: Jay E. Silberg Devon E. Hewitt Michael G. Lepre Daniel S. Herzfeld Jack Y. Chu SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax)

3