Free Motion for Reconsideration - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 96-166 C Chief Judge Edward J. Damich

ZOLTEK=S MOTION FOR RECONSIDERATION AND CLARIFICATION Plaintiff, ZOLTEK Corporation (hereinafter "ZOLTEK"), respectfully moves this Court for: 1). Reconsideration of its Order of August 16, 2005, extending discovery only to

January 31, 2006 and further stating that fact discovery may not be extended except under extraordinary circumstances; and 2). Clarification regarding discovery pertaining to the F-22 Fighter Plane.

BASIS FOR MOTION A. Discovery Regarding the B-2 Bomber

On August 16, 2005, this Court entered an Order granting in part ZOLTEK's unopposed motion for extension of time, but only until January 31, 2006 (Ex. 1). ZOLTEK had requested an extension of time until March 31, 2006. Additionally, the Court stated that future

enlargements of time will only be granted under extraordinary circumstances (Ex. 1). The basis for the Court's present motion appears to be the statement that: "Fact discovery in this case, however, has already been extended for over two (2) years" (Ex. 1). ZOLTEK respectfully

submits that the Court's factual basis for its ruling is in error, for the following reasons. On July 5, 2001, Defendant, the United States ("U.S.") submitted a motion for partial 1

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summary judgment regarding the use of silicon carbide fibers on the F-22 Fighter Plane (Ex. 2, Docket No. 167). In an Order dated March 14, 2002, this Court STAYED the motion for summary judgment, pending further briefing (Ex. 2, Docket No. 191). On July 30, 2002, ZOLTEK filed its motion to compel discovery from Northrop Grumman Corporation ("Northrop Grumman") regarding the use of partially carbonized fibers on the B-2 Bomber (Ex. 2, Docket Nos. 202-203). On July 16, 2003, this Court issued an Order denying the U.S.'s motion for partial summary judgment (Ex. 2, Docket No. 237). In this Order, the Court expressly STAYED ZOLTEK's July 30, 2002 Motion to Compel Discovery until the parties received the Court's Opinion on the U.S.'s Motion for Partial Summary Judgment (Ex. 2, Docket No. 237). On November 26, 2003, this Court issued its Opinion denying the U.S.'s Motion for Partial Summary Judgment (Ex. 2, Docket No. 242). On April 13, 2004, this Court granted in part and denied in part ZOLTEK's motion to compel production from Northrop Grumman (Docket No. 255). On August 25, 2004, after repeated requests from ZOLTEK, Northrop Grumman submitted its response to the Court Order, denying that it had any dockets responsive to ZOLTEK's request for production of documents regarding the usage of partially carbonized fibers on the B-2 Bomber (Ex. 2, Docket No. 266). Following Northrop Grumman's continued insistence that it had no responsive documents to the Court's April 13, 2004 Order, ZOLTEK filed a motion to show cause why Northrop Grumman should not be held in contempt on March 23, 2005 (Ex. 2, Docket No.270). In a decision dated June 16, 2005, this Court denied ZOLTEK's motion to show cause. However, the Court issued the warning that if documents are found to exist which are responsive to the Court's April 13, 2004 Order, Northrop Grumman would "run the risk of a contempt

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citation" (Ex. 2, Docket No. 281). As set forth in the above sequence of events, it has not been two (2) years since this Court issued its Order of April 13, 2004 compelling production of the Northrop Grumman documents and things requested by ZOLTEK. Furthermore, ZOLTEK has faced continuous stonewalling by Northrop Grumman regarding the production of responsive non classified documents pertaining to the purchase of partially carbonized fibers by Northrop Grumman's B-2 Division despite substantial credible evidence from an independent third party manufacturer (BASF) as well as internal documents from Northrop Grumman itself that such documents exist1. ZOLTEK

respectfully submits that it is unfair to penalize ZOLTEK by cutting short discovery which will in essence reward Northrop Grumman for its stonewalling tactics. Following this Court's April 13, 2004 Order granting in part ZOLTEK July 13, 2002 Motion to Compel, ZOLTEK has diligently pursued discovery from Northrop Grumman. ZOLTEK has developed and will

continue to develop evidence from third parties of Northrop Grumman's stonewalling legitimate discovery requests. However, this process takes time. ZOLTEK's requested extension of time to March 31, 2006, was not for the purposes of delay. ZOLTEK has attempted in every way it knows to obtain the relevant, non-classified documents from Northrop Grumman, the prime contractor for the B-2 Bomber. Given Northrop Grumman's stonewalling, ZOLTEK is attempting to develop evidence from other third party sources regarding the use of partially carbonized fibers on the B-2 Bomber. This is the purpose of ZOLTEK's requested extension of time. ZOLTEK seeks the Court's understanding of the

circumstances ZOLTEK has faced in this litigation and, respectfully requests that the extension of time be granted to March 31, 2006. ZOLTEK understands the Court's position regarding the
ZOLTEK presented deposition testimony and a declaration from BASF personnel confirming Northrop Grumman's purchases of thousand of pounds of partially carbonized fibers. Additionally, Northrop Grumman's own personnel were soliciting the purchase of "controlled resistivity fibers" from ZOLTEK in 1977.
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need to present evidence for any further requests for fact discovery regarding the B-2 Bomber. ZOLTEK simply requests the Court to consider the above identified scenario and the conduct of the prime contractor for the B-2 Bomber in its consideration of any future extensions of time that ZOLTEK may seek. B. The F-22 Fighter Plane

After this Court's Order of December 9, 2003 denying the U.S.'s motion for partial summary judgment, this Court granted the parties request to certify the issues set forth in the Court's opinions for appeal to the Court of Appeals for the Federal Circuit (Ex. 2, Docket Nos. 250-251). Following the grant of interlocutory appeal by the Court of Appeals for the Federal Circuit, the parties prepared and submitted their briefs on the respective issues presented by the Court's order. Oral argument was heard on the appeal on March 9, 2005. The parties are awaiting the decision from the Court of Appeals of the Federal Circuit. For obvious reasons, ZOLTEK has not expended the time and resources taking any discovery on the issue of infringement by the F-22 Fighter Plane pending the outcome of the appeal before the Court of Appeals of the Federal Circuit. If this Court's decision is affirmed, ZOLTEK will seek to proceed with discovery as required. If the Court's decision is reversed, then ZOLTEK will be barred from pursuing its claim before this Court.2 ZOLTEK seeks clarification of this Court to preserve its rights to conduct discovery regarding the F-22 Fighter Plane if the decision of this Court is affirmed.

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As ZOLTEK stated at oral argument, if this Court's decision is reversed, ZOLTEK may seek relief in Federal District Court against Lockheed Martin Corporation for infringement of the patent-in-suit under 35 U.S.C. § 271 et. seq.

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CONCLUSIONS For the above stated reasons, ZOLTEK respectfully requests reconsideration of the Court's Order of August 16, 2005, to permit fact discovery to close on March 31, 2006, to permit ZOLTEK to seek additional fact discovery regarding the B-2 Bomber if warranted by the facts, and to clarify the Court's position regarding the close of fact discovery as it pertains to the F-22 Fighter Plane. Respectfully submitted,

Dated: August 23, 2005

/s/Dean A. Monco Dean A. Monco, Esq. John S. Mortimer, Esq. WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 West Madison Street, Suite 3800 Chicago, Illinois 60661-2511 Tel.: (312) 876-1800 Fax: (312) 876-2020 Counsel for Plaintiff ZOLTEK Corporation

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document entitled: 1. Zoltek=s Motion for Reconsideration and Clarification

has been served by Federal Express, next day delivery, this 23rd day of August, 2005 to attorneys for Defendant: Gary L. Hausken, Esq. United States Department of Justice Commercial Litigation Branch - Civil Division 1100 L Street, N.W. Room 11114 Washington, D.C. 20005

/s/Dean A. Monco Dean A. Monco John S. Mortimer Counsel for Plaintiff Zoltek Corporation