In the United States Court of Federal Claims

No. 15-843L

(Filed: January 26, 2018)

NOT FOR PUBLICATION

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ALEX BROOKS, JR. et al., *

*

Plaintiffs, *

* Denial of Motion for Enlargement of Time; 

 v. * RCFC 6(b)(1); Dilatory Conduct; Improper 

* Attempt to Shift Burden of Proof

THE UNITED STATES, *

*

Defendant. *

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ORDER

Before the court is plaintiffs’ motion for a thirty-day enlargement of time to file a reply in

support of their motion for partial summary judgment and response to defendant’s cross-motion

for partial summary judgment. As explained below, the court denies plaintiffs’ motion.

BACKGROUND

Plaintiffs in this Rails-to-Trails case filed a complaint on August 7, 2015, an amended

complaint on September 18, 2015, and a second amended complaint on February 9, 2016. The

parties subsequently engaged in extensive discussions concerning issues of title. Plaintiffs filed a

third amended complaint on July 28, 2017, and then, on August 31, 2017, filed a motion for

partial summary judgment, seeking to resolve issues of title in their favor with respect to 139

parcels of land. On October 10, 2017, defendant filed a response and cross-motion for partial

summary judgment in which it conceded that plaintiffs are entitled to summary judgment with

respect to 50 parcels of land, asserted that plaintiffs did not establish ownership of 12 parcels of

land as of the date that the Notice of Interim Trail Use was issued (August 4, 2015), and

contended that plaintiffs failed to establish a cognizable property interest with respect to at least

89 parcels of land. Per the court’s August 23, 2017 order, plaintiffs’ response to defendant’s

cross-motion was due by November 9, 2017. On November 7, 2017, the court granted plaintiffs’

unopposed motion to enlarge the November 9, 2017 deadline to November 30, 2017. 

On November 28, 2017, plaintiffs filed a motion requesting that the court stay the

resolution of defendant’s cross-motion for partial summary judgment with respect to the 89

parcels of land for which defendant disputed the existence of a cognizable property interest. 

Specifically, plaintiffs sought an additional two months “to allow time to conduct additional title
research, perform chains of title, and dismiss any claims for which the Plaintiffs do not dispute

the government’s motion for partial summary judgment.” Defendant opposed plaintiffs’ request

in a November 29, 2017 response, explaining:

Plaintiffs have had at least two years (since they filed their initial

complaint) to conduct the necessary research to substantiate their takings claims. 

Nowhere in their motion do they provide a reason explaining why they did not

conduct the necessary title research to support their claims prior to filing the suit,

or why the last two years of litigation have been insufficient to perform the

necessary chains of title to support their alleged ownership interest in the rail

corridor. The United States should not be penalized for Plaintiffs’ inadequate

research, especially after expending substantial resources and time in reviewing

hundreds of title documents, maps, surveys, and other documents related to

Plaintiffs’ claims, engaging in extensive negotiations with Plaintiffs that resulted

in a number of joint stipulations and resolved most of the title disputes,

responding to Plaintiffs’ Cross-Motion, and consenting to Plaintiffs’ extension

requests. With cross-motions for summary judgment pending, and Plaintiffs

urging judgment in their favor, it is well past time for Plaintiffs to ask for

permission to conduct further research on the validity of their own claims. 

Plaintiffs’ deficient title research is not one of the “rare circumstances” that would

justify staying the briefing (and resolution) of the United States’ partial

cross-motion on title issues. . . . Plaintiffs have not provided any reason

justifying a deviation from the briefing schedule that the parties agreed to and the

Court adopted. Plaintiffs cannot change the briefing schedule and request stay of

the proceeding after discovering that their claims are deficient.

In a November 30, 2017 order, the court noted found that defendant “made a compelling

argument to defeat plaintiffs’ motion.” However, “to ensure that plaintiffs have their day in

court,” it “reluctantly” granted plaintiffs’ request for an additional two months to respond to

defendant’s cross-motion for partial summary judgment. The court directed plaintiffs to file their

reply in support of their motion for partial summary judgment and response to defendant’s crossmotion by January 31, 2018.

Despite being made aware that the court found compelling defendant’s argument against

allowing plaintiffs additional time to conduct title research regarding their own claims well after

such research should have been conducted, plaintiffs, on January 24, 2018, filed another motion

to enlarge the time to respond to defendant’s cross-motion for partial summary judgment. 

Plaintiffs represent that they (1) “have been working diligently to research, address, and resolve

the government’s title disputes”; (2) “have requested chains of title, retained a title examiner, and

obtained additional deed and mapping documents”; and (3) “[on December 22, 2017,] . . . sent

the government a series of requests to admit, interrogatory requests, and requests for production

of documents seeking to narrow the factual title issues in dispute.” Further, with respect to the

discovery requests, plaintiffs represent that (1) on January 22, 2018, “the government provided

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its response . . . , including almost 125 pages of detailed objections and refusals to provide full

and complete responses”; (2) they “provided the government with a meet and confer letter [on

January 23, 2017,] seeking to resolve the numerous objections raised by the government”; and

(3) they “are hopeful they can resolve these discovery disputes without requiring the Court’s

intervention.” In light of these representations, plaintiffs request an additional thirty days–until

March 2, 2018–to file their response to defendant’s cross-motion, contending that the additional

time will allow the parties to resolve the discovery issues and further narrow the factual issues in

dispute.

On January 25, 2018, defendant filed a response in opposition to plaintiffs’ request for an

enlargement of time, reiterating its earlier objections to allowing plaintiffs additional time to

conduct title research regarding their own claims, and further contending: 

Plaintiffs’ attempt to blame the United States for this extension request has no

merit. . . . Plaintiffs improperly attempted to shift the burden of proof to the

United States by serving the United States with almost 500 pages of discovery

requests and supporting materials, including 148 exhibits, on December 22, 2017,

being fully aware that the United States’ responses would be due a few days

before their January 31, 2018 deadline.

With respect to its responses to plaintiffs’ discovery requests, defendant explained that it 

timely responded to Plaintiffs’ discovery requests, asserting a number of

legitimate objections, including the fact that Plaintiffs’ requests sought

information that is obtainable from some other source that is more convenient,

less burdensome, or less expensive, and that the requests sought to improperly

shift the burden of proof to the United States in contravention of well-settled law.

Defendant accordingly requests that the court deny plaintiffs’ enlargement motion. In addition,

defendant requests that if the court grants plaintiffs’ enlargement motion, it also enlarges the

deadline for it to file a reply in support of its cross-motion to May 4, 2018.

DISCUSSION

Pursuant to Rule 6(b)(1) of the Rules of the United States Court of Federal Claims

(“RCFC”), “the court may, for good cause, extend the time” to file briefs in support of motions

for summary judgment. RCFC 6(b)(1) should be liberally construed. Loveladies Harbor, Inc. v.

United States, 15 Cl. Ct. 375, 381 (1988). Thus, although the rule “clearly gives” the court “both

the authority to establish deadlines and the discretion to enforce them,” Raymond v. Ameritech

Corp., 442 F.3d 600, 605 (7th Cir. 2006); accord Sherrod v. Breitbart, 720 F.3d 932, 938 (D.C.

Cir. 2013) (“Rule 6(b) gives district courts wide discretion to modify the time limits set forth in

the rules.”), a request for an enlargement of time “made before the applicable deadline has passed

should ‘normally . . . be granted in the absence of bad faith on the part of the party seeking relief

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or prejudice to the adverse party,’” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th

Cir. 2010) (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1165 (3d ed. 2004)); accord James Wm. Moore et al., Moore’s Federal Practice § 6.06[2] (3d

ed. 2012) (“The court generally will find good cause and grant the extension unless the moving

party has been negligent, lacked diligence, acted in bad faith, or abused the privilege of prior

extensions.”).

A review of the procedural history of this case indicates that defendant is

correct–plaintiffs are attempting to delay the resolution of defendant’s cross-motion for partial

summary judgment. First, plaintiffs had ample time to conduct title research in support of their

claims, both before they filed suit,1

 and in the twenty-three months before briefing on crossmotions for partial summary judgment commenced. Second, plaintiffs do not explain why they

waited until December 22, 2017, to serve a large discovery request on defendant. Even if

plaintiffs could be excused for not possessing the information necessary to respond to

defendant’s cross-motion at the time the cross-motion was filed, plaintiffs waited twenty-two

days after the court granted their prior enlargement request to serve the discovery requests,

knowing full well that the deadline for defendant to respond would fall nine days before their

deadline to respond to defendant’s cross-motion.

Third, a number of the requests for admissions promulgated by plaintiffs were, as

defendant contends, unreasonably cumulative or duplicative–the parties had already agreed to

stipulations that addressed the requests. Fourth, in a significant number of their discovery

requests, plaintiffs sought information and documents that were not in defendant’s possession. 

Rather, the information and documents, to the extent they existed, would be in the possession of

local and state government agencies or plaintiffs themselves. By requesting the information and

documents from defendant rather than from the individuals or agencies possessing the

information and documents, plaintiffs are improperly attempting to shift the burden of proving

the existence of a cognizable property interest from themselves–where it belongs–to defendant. 

See, e.g., BHL Props., LLC v. United States, No. 15-179L, 2017 WL 5618532, at *6 (Fed. Cl.

Nov. 21, 2017) (“[I]t is [plaintiffs’] burden to prove [their] ownership of the land abutting the

railway corridor; it is not the government’s burden to disprove it.”). 

Ultimately, the court finds that plaintiffs have been less-than-diligent in marshaling the

evidence necessary to establish the validity of their claims. Moreover, plaintiffs’ dilatory

conduct has prejudiced defendant who, like plaintiffs, is entitled to a “just, speedy, and

inexpensive determination” of this case. RCFC 1. Accordingly, the court concludes that

plaintiffs have not established good cause for an enlargement of time. Plaintiffs’ enlargement

motion is therefore DENIED. Plaintiffs shall file a reply in support of their motion for partial

1

 Plaintiffs filed suit on September 18, 2015, less than two months after the Notice of

Interim Trail Use was issued; plaintiffs therefore had more than five years remaining in the sixyear limitations period. 

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summary judgment and response to defendant’s cross-motion for partial summary judgment no

later than Wednesday, January 31, 2018. 

IT IS SO ORDERED.

s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

Judge

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