Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:95-cv-00650-LSM

Document 115

Filed 01/24/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ALFRED ALOISI, et al., Plaintiffs v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

No. 95-650L Hon. Lawrence S. Margolis

REPLY IN SUPPORT OF MOTIONS TO COMPEL THE APPEARANCE OF PLAINTIFFS JAMES KENDLE, ENERGEL AND DYNATECH AT DEPOSITION Defendant submits this Reply in support of both, its Motion to Compel the Appearance of Plaintiffs Energel, Inc. and Dynatech Corporation at Deposition, filed November 30, 2007 (Dkt. No. 105), and its Motion to Compel the Appearance of Plaintiff James Kendle at Deposition, filed December 12, 2007 (Dkt. No. 107), and in reply to Plaintiffs' Response to Defendant's Motions to Compel filed January 11, 2007 (Dkt. No. 114). Despite the excuses provided by Plaintiffs in their Response to Defendant's Motions to Compel, no where do they argue that the motions should be denied. In light of the fact that these Plaintiffs came forward only after they were confronted with a motion to compel, Defendant's motions should be granted. Defendant, therefore, requests that the Court grant the United States' motions to compel and order Plaintiffs to appear at deposition. Should these plaintiffs fail to appear or, with respect to the 30(b)(6) depositions of Energel, Inc. and Dynatech Corporation, appear without being prepared to address the subject matter identified in the notice of deposition, the Court may then take prompt and appropriate action under Rule 37(b) of the Rules of the United States Court of Federal Claims.1/

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Plaintiff Goodman's declining health was never brought to Defendant's attention. See Affidavit of Myron Finkelstein (Dkt. No. 114-2), ¶¶ 5, 8; see also Oct. 31, 2007 Aloisi Tr. at 5:10-21 (attached hereto as Ex. 1) (indicating the Mr. Goodman's health declined over an extended period of time). Had Defendant been apprised of Mr. Goodman's declining condition,

Case 1:95-cv-00650-LSM

Document 115

Filed 01/24/2008

Page 2 of 3

Finally, because Plaintiffs decided to come forward just a few weeks before dispositive motions are due on February 1, 2008, Defendant should be permitted to supplement its motions papers with information obtained from the depositions, if Defendant deems it warranted. Counsel for Plaintiffs has agreed that Defendant may supplement its motion papers (see Ex. 2, hereto). Defendant, therefore, respectfully requests that, when granting its motions to compel, the Court also grants Defendant leave to supplement its motion papers with information obtained from the anticipated depositions as Defendant may deem necessary. // // // // // // // // // // // // // //

Defendant could have sought leave during the stay to depose Mr. Goodman to preserve his testimony. To cure any prejudice to the United States resulting from Plaintiffs' failure to timely apprise Defendant of Mr. Goodman's condition, Defendant may seek an adverse inference where appropriate. -2-

Case 1:95-cv-00650-LSM

Document 115

Filed 01/24/2008

Page 3 of 3

Dated: January 24, 2008

Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division

s/ Bruce K. Trauben BRUCE K. TRAUBEN Natural Resources Section Environment and Natural Resources Division U. S. Department of Justice P. O. Box 663 Washington, D.C. 20044-0663 (202) 305-0238 (ph) (202) 305-0267 (fax) WILLIAM SHAPIRO Natural Resources Section Environment and Natural Resources Div. U.S. Department of Justice 501 I Street, Suite 9-700 Sacramento, CA 95814-2322 (916) 930-2207 Attorneys for Defendant

Of Counsel: Rose Miksovsky, Esq. Office of General Counsel U.S. Department of Agriculture 33 New Montgomery St., 17th Fl. San Francisco, CA 94105-3170

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