Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 03-289C (Judge Allegra)

DEFENDANT'S MOTION FOR LEAVE TO FILE SURREPLY, AND SURREPLY Pursuant to the Court's Rules ("RCFC"), defendant, the United States, respectfully requests the Court's permission to file this brief surreply to the reply filed on August 26, 2007, by plaintiff, United Medical Supply Company, in support of its July 27, 2007 motion to "compel discovery." United Medical filed only a two-page motion to "compel" in July, but has filed a seven-page reply to our six-page response. We respectfully wish to address, as briefly as possible, several brand new issues raised in plaintiff's reply. United Medical has not responded to the central points established in our brief. Plaintiff newly asserts in its reply that its "counsel had to cancel his August vacation to 'be available' for depositions, which the Government indicated might be a possibility." Pl. Reply 1. However, (i) plaintiff's counsel never mentioned changing his vacation plans until after he had done so, on August 8, which was after plaintiff's motion to "compel" was filed and we had written to ask plaintiff to withdraw it; (ii) given undersigned counsel's anticipated trial schedule; the leave status of relevant Government personnel; and what we understood to be plaintiff's counsel's vacation plans ­ all of which we discussed with plaintiff in early July ­ we know of no communications (certainly, United Medical cites none) in which we indicated that depositions in August 2007 were "a possibility"; (iii) the words, "be available," although in quotation marks, do

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not appear to be quoted from any communications between the parties; and (iv) this issue has nothing to do with the merits of plaintiff's motion but is apparently raised out of pique and a desire to cast defendant in a negative light. United Medical's assertion that "[t]he only written discovery provided during July and August were some Government business records with a caveat by Government counsel that the records were not reliable," id. at 1-2, is incorrect, as the correspondence attached to this brief demonstrates. Plaintiff's discussion of "OIG data," id. at 5-6, consists of new allegations and arguments (new to this motion ­ this history has been rehashed several times in United Medical's prior filings) and should be stricken. In any event, United Medical's argumentative timeline-chart, id. at 3-5, confirms our statement that plaintiff never conferred with us concerning a possible motion to compel analysis of the "OIG data" before filing its motion, as required by RCFC 37(a)(2)(B). We told United Medical on July 5, 2007, and repeatedly thereafter, that we needed additional time to answer its outstanding interrogatories. Cf. id. at 6-7. Plaintiff's reference to pending RCFC 30(b)(6) depositions, id. at 8, is also brand new to this motion and should be stricken. In any event, United Medical's argumentative timeline-chart, id. at 3-5, confirms that plaintiff never warned us about a possible motion regarding that issue. CONCLUSION Accordingly, we respectfully request the Court to accept this surreply for filing and deny plaintiff's motion.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/Jeanne E. Davidson by Todd M. Hughes JEANNE E. DAVIDSON Director

OF COUNSEL: MICHAEL McGLINCHEY Trial Attorney Defense Supply Center Philadelphia

s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel Commercial Litigation Branch Department of Justice Attn: Classification, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Attorneys for Defendant

August 30, 2007

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CERTIFICATE OF FILING I certify that on August 30, 2007, the attached was filed electronically. I understand that service is complete upon filing and parties and others may access this filing through the Court's electronic system.

s/Kyle Chadwick

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