Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:99-cv-04451-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) EUGENE J. FRETT, Individually and ) as trustee of the Victor J. Horvath and Frances ) B. Horvath Trust, and ) ) DONNA P. FRETT, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,

No. 99-4451 L Judge Emily C. Hewitt

No. 05-1353 L Judge Emily C. Hewitt

DEFENDANT'S UNOPPOSED MOTION FOR EXTENSION OF ONE WEEK TO FILE BRIEFS DUE UNDER THE COURT'S FEBRUARY 19, 2008 ORDER Defendant respectfully requests an extension of one week in which all parties are to file the remaining briefs as directed in the Court's February 19, 2008 order (Docket # 260). Counsel for Defendant has conferred with John Ehret, counsel for plaintiffs, who advised that Plaintiffs do not oppose Defendant's request. The present schedule established in the February 19, 2008 order requires: (1) (2) (3) On or before May 20, 2008, Plaintiffs shall file their initial brief. On or before July 8, 2008, Defendant shall file its response to Plaintiffs' brief. No later than August 5, 2008, Plaintiffs shall file their reply to Defendant's brief.

Case 1:99-cv-04451-ECH

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Plaintiffs filed their initial brief on May 20, 2008. Docket # 262. If Defendant's motion is granted, the amended schedule would move the remaining each of the remaining two dates back one week to require: (1) (2) On or before July 15, 2008, Defendant shall file its response to Plaintiffs' brief. On or before August 12, 2008, Plaintiffs shall file their reply to Defendant's brief.

Defendant requests this first extension of time for this briefing requirement due to undersigned counsel's work load and the additional time needed to coordinate further Defendant's position with agency counsel. As counsel for Defendant apprised the Court before the February 19, 2008 order was entered, the undersigned was scheduled for leave from June 6 through June 22. In setting the briefing schedule, the Court accommodated the undersigned's request to take that scheduled vacation into consideration. Nonetheless, and though Defendant's counsel worked approximately 10 hours during his vacation upon Defendant's response to Plaintiffs' brief, the Defendant needs the additional week requested in this motion. From the time Plaintiff's brief was filed on May 20, 2008, until the start of the undersigned's vacation on June 6, 2008, Defendant's counsel was engaged in work on (a) the following matters before the Court of Federal Claims (CFC): Richard P. Cook, et al. and Copar Pumice Company v. United States, No. 08-cv-337 L; Freeman v. United States, No. 01-cv-39 L; Kaw Nation of Oklahoma v. United States, No. 06-cv-934 L; The Otoe-Missouria Tribe of Oklahoma v. United States, No. 06-cv-937 L; Seminole Nation of Oklahoma v. United States, No. 06-cv-935 L; Shoshone v. United States, Nos. 458-79 L and 459-78 L; Tonkawa Tribe of Indians of Oklahoma v. United States, No. 06-cv-938 L; as well as this case, and (b) the following matters before Western District of Oklahoma: The Otoe-Missouria Tribe of Oklahoma

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Case 1:99-cv-04451-ECH

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v. Kempthorne, et al., No. 06-cv-1436, and Tonkawa Tribe of Indians of Oklahoma v. Kempthorne, et al., No. 06-cv-1435. Some of the work during this time included filing an Answer to an Amended Complaint in The Otoe-Missouria Tribe of Oklahoma v. United States, No. 06-cv-937 L; work on an Answer to an Amended Complaint in Seminole Nation of Oklahoma v. United States, No. 06-cv-935 L (that was filed on June 10, 2008); work on arriving at an agreement on a protective order and confidentiality agreement in Seminole Nation of Oklahoma v. United States, No. 06-cv-935 L (a stipulation was filed on June 12, 2008); a telephonic status conference in Shoshone v. United States, Nos. 458-79 L and 459-78 L; filing an Answer to an Amended Complaint in Tonkawa Tribe of Indians of Oklahoma v. United States, No. 06-cv-938 L on June 3, 2008; and travel to Oklahoma on June 2-3, 2008 for status conferences in The Otoe-Missouria Tribe of Oklahoma v. Kempthorne, et al., No. 06-cv-1436, and Tonkawa Tribe of Indians of Oklahoma v. Kempthorne, et al., No. 06-cv-1435, both before the Western District of Oklahoma. Also during this time, agency counsel and the undersigned counsel worked upon acquiring a declaration for use in the instant matter before this Court. From the time the undersigned's vacation concluded on June 22, 2008, Defendant's counsel has been engaged in work: on the brief due in this matter on July 8, 2008; on a motion to dismiss that was filed on June 30, 2008, in the Seminole Nation of Oklahoma v. Kempthorne et al, No. 06-cv-00556 (E.D. OK); preparing and participating in a telephonic status conference on June 26, 2008, in Shoshone v. United States, Nos. 458-79 L and 459-78 L (CFC); on a joint status report filed in OSI, Inc. v. United States, No. 04-1210L (CFC) ; as well as work on the matter of Richard P. Cook, et al. and Copar Pumice Company v. United States, No. 08-cv-337 L (CFC).

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In addition to the work described above, Defendant's counsel needs the requested extension in order to coordinate more fully the Defendant's position and response to Plaintiffs' brief. Agency counsel has been on leave since June 21, 2008, and will remain so until July 7, 2008. Agency counsel has made himself available during his leave but necessarily the coordination with him by the undersigned has been limited. Therefore, for the reasons stated above, Defendant respectfully requests the Court grant this motion for an extension of one week in which all parties are to file the remaining briefs from the dates set forth in the Court's February 19, 2008 order. Dated: July 1, 2008 Respectfully submitted,

s/Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Telephone: 303-844-1369 Facsimile: 303-844-1350 [email protected] Attorney for Defendant OF COUNSEL Gary W. Segrest, Esq. Office of Counsel U.S. Army Corps of Engineers 477 Michigan Avenue, Room 659 Detroit, MI 48226

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CERTIFICATE OF SERVICE I certify that I have served a copy of the "DEFENDANT'S UNOPPOSED MOTION FOR EXTENSION OF ONE WEEK TO FILE BRIEFS DUE UNDER THE COURT'S FEBRUARY 19, 2008 ORDER" by electronic filing with the United States Court of Federal Claims on the 1st day of July, 2008 on: John Ehret, Esq. 5986 Dunham Avenue Stevensville, MI 49127 Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603

and by first class, postage paid, mail on: Mark E. Christensen Christensen & Ehret Attorney at Law 222 West Adams Street 21st Floor Chicago, IL 60606

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s/Terry M. Petrie TERRY M. PETRIE