Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:94-cv-00522-MCW

Document 326

Filed 02/28/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FIRST ANNAPOLIS BANCORP, INC., Plaintiff, v. THE UNITED STATES, Defendant.

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No. 94-522C (Judge Williams)

DEFENDANT'S REQUEST FOR REVISION OF DEADLINES TO FILE THE REPORT OF THE GOVERNMENT'S EXPERT RESPONDING TO PLAINTIFF'S TAX GROSS-UP CLAIM AND AMENDMENTS TO DEFENDANT'S CONTENTIONS OF FACT AND LAW Pursuant to the Court's Order dated February 6, 2007 ("Order"), the report of the Government's expert responding to plaintiff's untimely tax gross-up claim, advanced through the testimony of G. Thomas Daughtery, shall be filed by March 2, 2007. Order at 2. Pursuant to the same Order, any amendments to our Contentions of Fact and Law concerning the tax gross-up claim are to be filed by March 5, 2007. Order at 3. The plaintiff first made Mr. Daughtery available for deposition yesterday, February 27, 2007. Our responsive expert, Mr. Clowery, was unavailable to attend Mr. Daughtery's deposition. We made arrangements with a court reporting service that was going to provide us the transcript of Mr. Daughtery's deposition this morning, in order for us to make it available to Mr. Clowery for his review before the submission of his expert report to our office for filing. Plaintiff's counsel refused to allow the use of the court reporting service we suggested, and insisted on making his own arrangements for transcription services. The undersigned, Delisa M. Sanchez, was present at Mr. Daughtery's deposition and, upon its conclusion, requested the court reporter to provide the transcript of the deposition by this morning in order for us to be able to

Case 1:94-cv-00522-MCW

Document 326

Filed 02/28/2007

Page 2 of 4

meet the Court's Friday and Monday deadlines. The court reporter retained by plaintiff refused to provide a copy today, and stated that the earliest she could make the transcript available to the parties would be sometime on Monday, March 5, 2007. As the Court is aware, plaintiff did not serve upon the Government an expert report discussing Mr. Daughtery's expert opinions as required by RCFC 26(a)(2)(b). At his deposition, Mr. Daughterly unequivocally testified that the testimony he intends to offer at trial is expert testimony rather than fact testimony. Therefore, the only statement of Mr. Daughtery's expert opinions and reasons thereof, is the transcript of his February 27, 2007 deposition. As the Court denied our request to relieve Mr. Clowery from filing an expert report, Mr. Clowery needs to review the transcript of Mr. Daughtery's deposition in order to respond to those opinions in his expert report. Accordingly, as we will not receive a transcript of Mr. Daughtery's deposition before Monday, March 5, 2007, we respectfully request that the Court allow the filing of Mr. Clowery's expert report and any amendments to our Contentions of Fact and Law by Thursday, March 8, 2007. Also, the Government requests that the Court issue an order reflecting the revised deadlines. Counsel for plaintiff does not object to the foregoing request.

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Case 1:94-cv-00522-MCW

Document 326

Filed 02/28/2007

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Respectfully submitted, STUART E. SCHIFFER Deputy Assistant Attorney General

JEANNE E. DAVIDSON Acting Director s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director s/Richard B. Evans by Delisa M. Sánchez OF COUNSEL: TIMOTHY ABRAHAM MELINDA HART MARK PITTMAN DELISA M. SANCHEZ Trial Attorneys RICHARD B. EVANS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 353-7760 Facsimile: (202) 305-7644 Attorneys for Defendant

February 28, 2007

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Case 1:94-cv-00522-MCW

Document 326

Filed 02/28/2007

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CERTIFICATE OF FILING I hereby certify that on February 28, 2007, a copy of the foregoing "DEFENDANT'S REQUEST FOR REVISION OF DEADLINES TO FILE THE REPORT OF THE GOVERNMENT'S EXPERT RESPONDING TO PLAINTIFF'S TAX GROSS-UP CLAIM AND AMENDMENTS TO DEFENDANT'S CONTENTIONS OF FACT AND LAW" 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/Delisa M. Sanchez