Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:03-cv-01720-RWG

Document 7

Filed 12/04/2003

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS PROMATECH, INC., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 03-1720C (Senior Judge Gibson)

DEFENDANT'S UNOPPOSED MOTION TO MODIFY THE COURT'S DECEMBER 1, 2003 SCHEDULING ORDER AND REQUEST FOR LEAVE TO FILE PRELIMINARY STATUS REPORT OUT OF TIME Defendant, the United States, respectfully requests the Court to modify its December 1, 2003 scheduling order and further requests leave to file its preliminary status report out of time. Defendant has discussed this request with counsel for plaintiff, Promatech, Inc., who does not oppose. As the Court's December 1 scheduling order accurately states, the parties failed to submit a joint proposed scheduling plan within the time required by the Rules of the United States Court of Federal Claims. The parties have failed to do so in part because of inadvertence and in part because of difficulty in contacting each other to discuss and plan a schedule for proceeding with litigation of Promatech's claims. Defendant was able to reach counsel for Promatech on December 1, 2003, at which time the parties were finally able to discuss Promatech's claims, and, given the relative size of Promatech's claims, the need for early settlement discussions before conducting discovery.1 Counsel for defendant originally contacted Promatech's identified attorney of record, Christopher M. McNulty, to discuss this matter in early November, 2003, but Mr. McNulty informed counsel for defendant to contact Mr. Peter Kutil in Mr. McNulty's law firm's
1

Case 1:03-cv-01720-RWG

Document 7

Filed 12/04/2003

Page 2 of 4

We apologize for the parties' mutual inadvertence regarding this matter. Nonetheless, the parties have discussed scheduling in this case and have mutually agreed that it would be beneficial, before the parties pursue extensive discovery, to engage in settlement discussions that could potentially preclude the need for further proceedings or extensive discovery in this case. Accordingly, to allow the parties time to explore the possibility of settlement, defendant, with consent of Promatech, respectfully requests that the Court modify its December 1, 2003 scheduling order. Defendant requests this modification for the reason that, if the parties are unable to resolve this matter in early settlement discussions, some additional time will be needed to complete discovery. Defendant requests leave to submit its preliminary status report, as Exhibit A hereto, which sets forth defendant's proposed scheduling plan. On December 1, 2003, counsel for Promatech indicated that Promatech consents to the attached preliminary status report and scheduling dates set forth therein, as well as defendant's submission of the status report upon Promatech's behalf.2 Accordingly, defendant, the United States, respectfully requests the Court modify its December 1, 2003 Scheduling Order and further requests leave to file its preliminary status report out of time. Respectfully submitted,

New York office regarding preparation of a joint preliminary status report. Although counsel for defendant contacted Mr. Kutil in mid-November, 2003, and forwarded a draft preliminary status report to Mr. Kutil via electronic mail, Mr. Kutil was unable to review the draft of the preliminary status report and discuss its contents until December 1, 2003. Mr. Kutil stated that he had been unable to respond to counsel for defendant because of personal family reasons. Because counsel for plaintiff has not yet signed up for the Court's ECF system, plaintiff is unable to join counsel for defendant in electronically signing and filing a joint report. 2
2

Case 1:03-cv-01720-RWG

Document 7

Filed 12/04/2003

Page 3 of 4

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/Franklin E. White FRANKLIN E. WHITE Assistant Director s/James M. Meister JAMES M. MEISTER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, DC 20530 Tel: (202) 305-3079 Attorneys for Defendant OF COUNSEL: DANIEL P. GIMMY, ESQ. Law Department, New York United States Postal Service Date: December 4, 2003

3

Case 1:03-cv-01720-RWG

Document 7

Filed 12/04/2003

Page 4 of 4

CERTIFICATE OF FILING I hereby certify that on this 4th day of December, 2003, a copy of the foregoing "DEFENDANT'S UNOPPOSED MOTION TO MODIFY THE COURT'S DECEMBER 1, 2003 SCHEDULING ORDER AND REQUEST FOR LEAVE TO FILE PRELIMINARY STATUS REPORT OUT OF TIME" 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/James M. Meister

4