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

Case 1:07-cv-00652-LMB

Document 8

Filed 10/30/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CHRISTOPHER SEAN VAN WINKLE and DAVID ALLEN COX, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

Judge Baskir No. 07-652C

DEFENDANT'S MOTION FOR LEAVE AND MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO COMPLAINT Defendant, the United States, by its undersigned counsel, hereby moves to enlarge the time within which it must answer, or otherwise respond, to the Complaint, by 60 days, from November 5, 2007, the date now set, to and including January 4, 2008. This is defendant's first motion for an enlargement of time. Defendant's counsel has conferred with counsel for plaintiff and has been informed that plaintiff opposes this motion, although it would not oppose a 15 day enlargement of time to November 20, 2007. Defendant has attached a letter from plaintiff's counsel setting forth its position as Exhibit A. Defendant further moves for leave to file this motion within 14 days of the date for responding to the Complaint. (Special Proc. Order, ¶ 7).

-1-

Case 1:07-cv-00652-LMB

Document 8

Filed 10/30/2007

Page 2 of 4

STATEMENT IN SUPPORT OF MOTION This is an action for unauthorized manufacture or use of a patented invention pursuant to 28 U.S.C. § 1498(a) concerning attachments to body armor designed to provide protection for the shoulder and underarm regions. The plaintiffs were officers in the U.S. Army at the time they reported the invention, and have received a favorable decision from the Department of Commerce as to their rights in the patent, pursuant to E.O. 10096. The Complaint was filed on September 6, 2007. While defendant's counsel immediately sent a statutory call to the Army, it did not begin to receive documents from the Army until early October and received a number of documents relating to the contract at issue on October 23, 2007. Counsel will not have sufficient time to analyze these documents and obtain further information needed in order to respond to the Complaint within the time presently set. Defendant also needs to determine whether it has any indemnity rights against Point Blank Body Armor. If so, a motion to provide notice to Point Blank Body Armor, pursuant to RCFC 14(b)(2) should be filed before the date on which an answer is due. The requested enlargement will permit defendant to determine whether a motion for notice

-2-

Case 1:07-cv-00652-LMB

Document 8

Filed 10/30/2007

Page 3 of 4

is appropriate and to file it before the date the answer is due, as set forth in RCFC 14. In addition, defendant seeks an enlargement because it has experienced the departure of two attorneys from its staff of less than fifteen patent attorneys, in the past two months. This has impeded defendant's ability to complete its investigation in order to respond to the Complaint since it has had to cope with this short term shortage in its Intellectual Property Staff. One of our newly hired patent attorneys is set to begin within two weeks. We expect that he will then become attorney of record in this case. Finally, defendant moves for leave to file this motion within the time normally set for response. On October 23, 2007, defendant's counsel first left a voicemail for plaintiff's counsel to call, in order to discuss the request for an enlargement. However, because of both counsel's schedules, they were not able to discuss the matter until Friday, October 26, 2007. Plaintiff's counsel asked defendant to provide it with a letter setting forth its reasons for an enlargement, which defendant did that day.1 Plaintiff's counsel responded with its letter in mid-afternoon, on October 29, 2007.

1

Both counsel sent their letters by e-mail.
-3-

Case 1:07-cv-00652-LMB

Document 8

Filed 10/30/2007

Page 4 of 4

However, defendant's counsel was out of the office at that time, attending a meeting at the U.S. Attorney's Office in Alexandria. Thus, while defendant began the process of consulting plaintiff's counsel in time to permit a response to its motion, the schedules of both counsel did not permit defendant to obtain plaintiff's final position until yesterday afternoon. CONCLUSION For the above-stated reasons, defendant respectfully requests that this motion be granted. PETER D. KEISLER Assistant Attorney General

s/John J. Fargo JOHN J. FARGO Director, Intellectual Property Staff Commercial Litigation Branch Civil Division Department of Justice Washington, DC 20530 Tel: 202-514-7223 Fax: 202-307-0345 Date: October 30, 2007

-4-