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

Case 1:01-cv-00642-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS GASA, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) No. 01-642 ) (Judge Sweeney) ) ) )

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RE-OPEN DISCOVERY Defendant, the United States, respectfully submits the following response to plaintiff GASA, Inc.'s ("GASA") motion to reopen discovery.1 GASA now seeks to reopen discovery prior to filing its response to our renewed motion for summary judgment. GASA's request should be denied. GASA has failed to demonstrate that any factual discovery is necessary. The premise of GASA's motion is that it needs discovery "to support the allegations contained in the Third Amended Complaint" and "to lay the factual predicate for the expert report" upon which the Third Amended Complaint is based. Pl. Motion 2.2 According to GASA, "with the filing of the Third Amended Complaint this case is essentially starting from the beginning." Pl. Motion 3. As we discuss below, after over five years of litigation, this case is not "essentially starting from

Plaintiff's motion also requests an enlargement of time of 30 days after the close of discovery to file a response to our renewed motion for summary judgment. We do not oppose plaintiff's request for an additional 30 day enlargement of time to respond to our motion. However, as set forth in this response, we do object to any additional discovery. "Pl. Motion ___" refers to plaintiff's motion to reopen discovery. "SA ___" refers to the supplemental appendix attached to our January 20, 2006 reply brief. "DA ___" refers to the appendix attached to this response.
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the beginning." GASA's motion to reopen discovery fails to demonstrate that it is entitled to reopen discovery at this late juncture of the proceedings. As such, its motion should be denied. I. The Parties Previously Agreed That Additional Factual Discovery Would Not Be Conducted As A Result Of GASA's Request To Substitute Its Expert Witness Discovery in this case closed in October 2003. Subsequent to that date, one of plaintiff's experts, Captain Jack Ross, passed away. Several months later, plaintiff requested, and was granted, leave to substitute another expert in place of Captain Ross. With the death of Captain Ross, we did not oppose GASA's request to obtain an expert to replace him. However, in negotiations with GASA regarding its motion, we expressed our concern that GASA's new expert be limited to the type of analysis and issues addressed in Captain Ross's report (the alleged effect of winter weather upon GASA's production). GASA's former attorney of record (Michael Magee ­ a partner in the same law firm with current counsel of record) recognized our concern and the parties negotiated the following statement that is included in GASA's motion for leave: "[d]efendant, however, specifically reserves the right to challenge the scope of Plaintiff's new expert report." SA 62. With regard to discovery, GASA's former attorney of record likewise recognized our concern that allowing replacement of Captain Ross with a new expert should not lead to plaintiff's reopening of fact discovery. In recognition of this concern, and as part of the agreement not to oppose GASA's request to substitute its expert witness, the parties negotiated the following statement that likewise is included in GASA's motion for leave: "Plaintiff stipulates that it shall not be entitled to further discovery, including the deposition of Defendant's rebuttal expert." SA 61.

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After substitution of Mr. Sadaka as GASA's expert and after completion of Mr. Sadaka's report and deposition, the parties filed a "Joint Status Report And Request For Post-Discovery Conference." DA 1-2. In that status report, the parties jointly informed the Court, with respect to discovery, that "[a]ll fact and expert discovery is complete, with the exception that plaintiff is in the process of locating a few additional documents responsive to defendant's discovery request." Id. With regard to the filing of motions pursuant to RCFC 56, the parties jointly informed the Court that "[t]he parties anticipate the filing of motions pursuant to RCFC 56." Id. Subsequent to the filing of the joint status report, the Court set deadlines for filing of motions for summary judgment. In accordance with the Court's order, the Government filed its motion for summary judgment on November 22, 2005. The fact that GASA now has filed a Third Amended Complaint that incorporates the opinions of its new expert, Michel Sadaka, does not in anyway provide a proper basis to reopen discovery. GASA previously agreed not to seek further discovery as a result of its replacing Captain Ross with Mr. Sadaka and, after issuance of Mr. Sadaka's expert report and his deposition, agreed that discovery was "complete." Id. GASA had ample time to conduct fact discovery prior to close of discovery. For reasons known only to plaintiff, GASA did not avail itself when it had the opportunity to conduct depositions of fact witness. Its belated request to reopen discovery, in contravention of an earlier agreement and understanding reached between the parties, should be rejected.

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II.

GASA Has Failed To Demonstrate That It Is Entitled To Reopen Discovery Aside from the fact that, in negotiating the substitution of its expert witness, plaintiff

previously stipulated that it would not seek further discovery, GASA's motion to reopen discovery fails completely to demonstrate that such a course of action is appropriate under the circumstances here. In the current posture of this case, there is pending before this Court defendant's renewed motion for summary judgment, filed September 20, 2006, as well as defendant's original motion for summary judgment, filed November 22, 2005. Our recently-filed, renewed motion for summary judgment is just that, a renewed motion for summary judgment. It is based upon the same grounds that were set forth in our original motion for summary judgment, with the exception of jurisdictional issues regarding GASA's delay damages claim. In responding to our previous motion for summary judgment, GASA did not allege that it needed additional discovery to file its response. Indeed, GASA submitted Mr. Sadaka's report in support of its response to our motion. All that has changed is that GASA now has filed its Third Amended Complaint to address jurisdictional concerns regarding certification of GASA's claim. GASA now argues that discovery is needed "in order to secure the evidence to support the allegations contained in the Third Amended Complaint." Pl. Motion 2. Yet GASA's Third Amended Complaint simply incorporates Mr. Sadaka's opinions and his expert report as the basis for its claim against the Government. GASA's argument that the filing of its Third Amended Complaint entitles it to reopen discovery is, at best, a pretext used only to justify conducting discovery that should have been conducted years ago. GASA's argument should be rejected.

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Assuming that it otherwise would be appropriate to seek discovery at this juncture, because there currently is pending a motion for summary judgment, the proper procedure for GASA to request such discovery is the filing of a motion pursuant to RCFC 56(f). RCFC 56(f) requires that, in the context of responding to a motion for summary judgment, a party requesting discovery must state, by affidavit, "explicit reasons why discovery is required in opposition to the motion for summary judgment." Aero Union Corp. v. United States, 47 Fed. Cl. 677, 687 (2000) (quoting C.W. Over & Sons v. United States, 44 Fed. Cl. 18, 23 (1999)). The United States Court of Appeals for the Federal Circuit has explained: In moving for relief under Rule 56(f), a party must demonstrate specifically "how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." . . . The party "may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts." . . . the movant is "required to state with some precision the materials he hope[s] to obtain with further discovery, and exactly how he expect[s] those materials would help him in opposing summary judgment." Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed. Cir. 1996) (citations omitted); see also Keebler Co. v. Murray Bakery Products, 866 F.2d 1386, 1389 (Fed. Cir. 1989). Thus, the party seeking discovery must explain, through affidavit, how the requested discovery would enable it to create a genuine issue of material fact. Moore, U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1116 (Fed. Cir. 2000), cert. denied 121 S. Ct. 1734 (2001). "Summary judgment need not be denied merely to satisfy a litigant's speculative hope of finding some evidence that might tend to support a complaint." Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 627 (Fed. Cir. 1984) (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968)). -5-

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GASA's motion to reopen discovery fails completely to meet the burden imposed upon it by RCFC 56(f). First, GASA offers no affidavit as required pursuant to RCFC 56(f). Second, GASA's motion contains only vague references regarding the need for discovery. These vague references are wholly insufficient to meet the requirement set forth in RCFC 56(f). Third, GASA's motion fails to identify any specific discovery that is necessary (other than to suggest that it "need[s] to take approximately four or five depositions," Pl. Motion 3) or that is reasonably expected to engender a genuine issue of material fact or provide an adequate factual predicate for the belief that there are discoverable facts sufficient to raise a genuine and material issue. See Theisen Vending Co. v. United States, 58 Fed. Cl. 194, 197 (2003) (non-movant must explain how results of discovery are reasonably expected to engender genuine issue of material fact, provide adequate factual predicate for belief that there are discoverable facts sufficient to raise genuine and material issue). GASA's motion fails to comply in any way with the requirements of RCFC 56(f). GASA's motion likewise fails to explain why the discovery it currently would like to conduct ("approximately four or five depositions") was not conducted by GASA during the discovery phase of this case. GASA already has had sufficient time to conduct discovery. For whatever reason, GASA decided not to avail itself of that opportunity and conduct depositions of fact witness. In requesting leave of this Court to substitute one of its experts, GASA previously agreed not to seek additional discovery. Now that GASA has requested to reopen discovery in contravention of its earlier agreement, GASA's motion still should be rejected because it fails completely to comply with the requirements of RCFC 56(f) and demonstrate the specific fact discovery needed -6-

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to respond to our motion. GASA already has filed a response to our earlier motion for summary judgment and was able to do so without requesting any additional discovery. GASA's belated request to conduct fact discovery, under the guise that it has filed a Third Amended Complaint and its suggestion that "this case is essentially starting from the beginning," should be rejected. CONCLUSION For these reasons, defendant respectfully requests that the Court deny plaintiff's motion to reopen discovery. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director S/ Donald E. Kinner DONALD E. KINNER Assistant Director OF COUNSEL: WILLIAM A. LUBICK Assistant District Counsel Department of the Army Pittsburgh District Corps of Engineers S/ David B. Stinson DAVID B. STINSON Trial Attorney Commercial Litigation Branch Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0163 Fax: (202) 514-8624 Attorneys for Defendant

OCTOBER 11, 2006

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CERTIFICATE OF FILING I hereby certify that on October 11, 2006, a copy of the foregoing "DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RE-OPEN DISCOVERY" and "APPENDIX TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO RE-OPEN DISCOVERY" 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 B. Stinson