Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 318

Filed 04/27/2007

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

No. 00-697C (Senior Judge Merow)

DEFENDANT'S CORRECTED MOTION FOR AN ENLARGEMENT OF TIME TO RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED AND SUPPLEMENTAL COMPLAINT Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests an enlargement of time of 14 days, to and including May 11, 2007, within which to respond to plaintiff's motion for leave to file a second amended and supplemental complaint. Our response is currently due on April 27, 2007. This is defendant's first request for an enlargement of time for this purpose. Counsel for plaintiff has represented that plaintiff, Wisconsin Electric Power Company ("WEPCO"), opposes our request. The request is necessary because the press of other business, coupled with the time required to analyze WEPCO's second amended complaint, third supplemental disclosures, and "errata" for one of its expert reports, prevents Government counsel from being able to provide a meaningful response within the time required. As the Court is aware, the prior lead counsel for the Government in this matter recently left the Department of Justice. That has required other Government attorneys, who were already working diligently upon other spent nuclear fuel cases, to devote time to this case. Unfortunately, undersigned Government counsel is currently working upon the post-trial briefs for System Fuels, Inc. v. United States, No. 03-2624C

Case 1:00-cv-00697-JFM

Document 318

Filed 04/27/2007

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(Fed.Cl.) (Braden, J.), that are due to be filed on May 1, 2007. Additionally, other Government counsel assigned to this case are similarly engaged in, among other cases, Dairyland Power Cooperative v. United States, No. 04-0106C (Fed.Cl.) (Damich, C.J.), where depositions are scheduled to take place on April 25 - 27, 2007, in La Crosse, Wisconsin. Further, responding to WEPCO's motion for leave to file a second amended complaint is no small matter. In its most recent amendment, WEPCO has submitted an "errata" to one of its expert reports which increases its damages claim in excess of $52 million.1 Even though WEPCO claims that these monies represent the same "type of costs" that WEPCO has previously claimed, WEPCO is seeking to do so well after the end of discovery, and after the submission of pre-trial briefs, witness list, and exhibit lists. Thus, contrary to WEPCO's assertions, requiring the Government to defend a claim for new costs at trial, without affording the Government an opportunity to learn about the basis for these damages or test their credibility, is plainly prejudicial. Therefore, we respectfully request that the Court grant this motion for an enlargement of time to provide us sufficient time to develop as appropriate response to plaintiff's motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

WEPCO revised its claim on January 17, 2007, to $47,358,000 in nominal dollars ($89,504,000 in present value dollars). Its current claim, as revised on April 10, 2007, is $52,795,000 in nominal dollars ($97,628,000 in present value dollars). -2-

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Case 1:00-cv-00697-JFM

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s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

s/ Sharon A. Snyder SHARON A. SNYDER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Phone: (202) 305-9640 Fax: (202) 307-2503 Attorneys for Defendant

April 27, 2007

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on April 27, 2007 a copy of this "DEFENDANT'S CORRECTED MOTION FOR AN ENLARGEMENT OF TIME TO RESPOND TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED AND SUPPLEMENTAL COMPLAINT" 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/ Harold D. Lester, Jr.