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

Case 1:07-cv-00693-NBF

Document 45

Filed 08/06/2008

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) DOROTHY L. BIERY, et al., ) ) Plaintiffs, ) ) v. ) Case No. 07-693L ) (consolidated with: Case No. 07-675L) THE UNITED STATES OF AMERICA, ) ) Honorable Nancy B. Firestone Defendant. ) __________________________________________) ) JERRAMY PANKRATZ and ERIN ) PANKRATZ, et al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) DEFENDANT'S MOTION TO STAY FILING DEADLINE FOR DEFENDANT'S REPLY BRIEF PENDING RESOLUTION OF DEFENDANT'S MOTION TO STRIKE (Doc. 44) Defendant United States hereby moves for an order staying the current deadline for the filing of its reply to Plaintiffs' summary judgment response brief (Doc. 43) pending resolution of Defendant's motion to strike that response brief on the ground that it violates the Court's Order of July 25, 2008 (Doc. 41), and further circumvents the page limitation by failing to comply with the content and form requirements set forth in RCFC 5.3(b)(1) and RCFC 5.4(c). Def.'s Mot. to Strike (Doc. 44).1 In support of this motion, Defendant states as follows.
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Unless otherwise indicated, all PACER document references (abbreviated as "Doc.") refer to the PACER document number in Biery, Case No. 07-0693L, which was designated as the 1

Case 1:07-cv-00693-NBF

Document 45

Filed 08/06/2008

Page 2 of 3

Plaintiffs summary judgment response brief was filed on July 25, 2008 (Doc. 43). Under RCFC 7.2(c) and RCFC 6(e), Defendant's reply to that response brief is due on August 11, 2008. However, on July 29, 2008 (two business days following the receipt of Plaintiffs' response brief), Defendant moved to strike Plaintiffs' summary judgment response brief on the ground that it violates the Court's Order of July 25, 2008 (Doc. 41), and further circumvents the page limitation by failing to comply with the content and form requirements set forth in RCFC 5.3(b)(1) and RCFC 5.4(c). Def.'s Mot. to Strike (Doc. 44). Plaintiffs have not yet responded to that motion, and under RCFC 7.2(a) and RCFC 6(e), that response is not due until August 15, 2008. Defendant's reply, if any, is due 7 days after Plaintiffs file their response. RCFC 7.2(b). In order to allow time for briefing on Defendant's pending motion to strike to be completed, and for the Court to rule on that motion, Defendant respectfully requests that the Court stay the briefing schedule, including the current deadline of August 11, 2008, for the filing of Defendant's reply brief, pending the Court's decision on the motion to strike Plaintiffs' overlength and noncompliant brief. If that motion is granted, and Plaintiffs are required to re-file a response brief that is in compliance with the Court's applicable rules and orders, Defendant's time to reply to that brief under RCFC 7.2(c) should run from the date that Plaintiffs' corrected response brief is filed.2

lead case following the consolidation of Biery and Pankratz. Defendant notes that it is presenting this request as a motion to stay the briefing schedule rather than a motion for an extension of time because RCFC 6.1 requires motions for an enlargement of time to state the specific number of additional days requested. The relief requested herein is dependent upon how long it takes Plaintiffs to file their response to Defendant's pending motion to strike and then the time needed for the Court to consider and rule on that motion, making it difficult for Defendant to state with specificity the number of additional days needed. 2
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Case 1:07-cv-00693-NBF

Document 45

Filed 08/06/2008

Page 3 of 3

WHEREFORE, Defendant respectfully requests that the Court grant this motion and stay the summary judgment briefing schedule, including the deadline for the filing of Defendant's reply brief, pending the Court's ruling Defendant's motion to strike. Respectfully submitted this 6th day of August, 2008. RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division s/Kristine S. Tardiff KRISTINE S. TARDIFF United States Department of Justice Environment & Natural Resources Division Natural Resources Section 53 Pleasant Street, 4th Floor Concord, NH 03301 TEL: (603) 230-2583 FAX: (603) 225-1577 E-MAIL: [email protected] AYAKO SATO United States Department of Justice Environment & Natural Resources Division Natural Resources Section 60 D Street, N.W., 3rd Flr. Room 3133 Washington, DC 20004 TEL: (202) 305-0239 FAX: (202) 305-0506 E-MAIL: [email protected] Attorneys for Defendant

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