# In th e United States Court of Federal Cl aims

N o. 15-843L (F iled: J anuary

26, 2018) NOT F O R PUB L I CATI ON

************************************* AL EX B ROOKS, J R. et al., *

* Plaintiffs, *

* Denial of Motion for Enlarg ement of Time;

v. * RCF C 6(b)(1); Dilatory Conduct; I mproper
* Attempt to Shift B urden of Proof THE UNI TED STATES, *

* Defendant. *

*************************************

ORDER

B e fore the court is plaintiffs’ motion for a thirty -day enlarg ement of time to file a reply in support of their motion for partial summary judg ment and response to defendant’s cross-motion for partial summary judg ment. As ex plained below, the court denies plaintiffs’ motion.

BACK G ROUND

Plaintiffs in this Rails-to-Trails case filed a complaint on Aug u st 7, 2015, an amended complaint on September 18, 2015, and a second amended complaint on F ebruary 9, 2016. The parties subsequently

eng a g ed in ex tensive discussions concerning issues of title. Plaintiffs filed a third amended complaint on J u ly 28, 2017, and then, on August 31, 2017, filed a motion for partial summary

judg ment, 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 judg ment in which it conceded that plaintiffs are entitled to summary

judg ment 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 I nterim Trail Use was issued (Aug ust 4, 2015), and contended that plaintiffs failed to establish a cog n iz able property

interest with respect to at least 89 parcels of land. Per the court’s Aug ust 23, 2017 order, plaintiffs’ response to defendant’s cross-motion was due by

November 9, 2017. On November 7, 2017, the court g ranted plaintiffs’ unopposed motion to enlarg e 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 judg ment with respect to the 89 parcels of land for which defendant disputed the ex istence of a cog n iz a ble property

interest. Specifically , plaintiffs soug ht an additional two months “to allow time to conduct additional titleresearch, perform chains of title, and dismiss any claims for which the Plaintiffs do not dispute the g overnment’s motion for partial summary judg ment.” Defendant opposed plaintiffs’ request in a November 29, 2017 response, ex plaining :
Plaintiffs have had at least two y ears (since they filed their initial complaint) to conduct the necessary research to substantiate their taking s claims. Nowhere in their motion do they provide a reason ex plaining why

they did not conduct the necessary

title research to support their claims prior to filing the suit, or why the last two y ears of litig ation have been insufficient to perform the necessary chains of title to support their alleg ed ownership interest in the rail corridor. The United States should not be penaliz ed for Plaintiffs’ inadequate research, especially

after ex pending substantial resources and time in reviewing hundreds of title documents, maps, survey s, and other documents related to Plaintiffs’ claims, eng ag ing in ex tensive neg otiations 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’ ex tension requests. W ith cross-motions for summary judg ment pending , and Plaintiffs urg ing judg ment 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 stay ing the briefing(and resolution) of the United States’ partial cross-motion on title issues. . . . Plaintiffs have not provided any reason justify ing a deviation from the briefing schedule that the parties ag reed to and the Court adopted. Plaintiffs cannot chang e the briefing schedule and request stay of the proceeding after discovering that their claims are deficient.

I n a November 30, 2017 order, the court noted found that defendant “made a compelling arg ument to defeat plaintiffs’ motion.” However, “to ensure that plaintiffs have their day in court,” it “reluctantly

” g ranted plaintiffs’ request for an additional two months to respond to defendant’s cross-motion for partial summary judg ment. The court directed plaintiffs to file their reply in support of their motion for partial summary judg ment and response to defendant’s crossmotion by

J anuary 31, 2018.

Despite beingmade aware that the court found compelling defendant’s arg

ument ag ainst allowing plaintiffs additional time to conduct title research reg arding their own claims well after such research should have been conducted, plaintiffs, on J anuary 24, 2018, filed another motion to enlarg e the time to respond to defendant’s cross-motion for partial summary judg ment. Plaintiffs represent that they (1) “have been working dilig ently

to research, address, and resolve the g overnment’s title disputes”; (2) “have requested chains of title, retained a title ex aminer, and obtained additional deed and mapping documents”; and (3) “[ on December 22, 2017,] . . . sent the g overnment a series of requests to admit, interrog atory requests, and requests for production of documents seeking

to narrow the factual title issues in dispute.” F urther, with respect to the discovery requests, plaintiffs represent that (1) on J anuary 22, 2018, “the g overnment provided

-2-its response . . . , including almost 125 pag es of detailed objections and refusals to provide full

and complete responses”; (2) they “provided the g overnment with a meet and confer letter [ on J anuary 23, 2017,] seeking to resolve the numerous objections raised by the g overnment”; and (3) they “are hopeful they

can resolve these discovery disputes without requiring the Court’s intervention.” In lig ht of these representations, plaintiffs request an additional thirty day s–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 J anuary

25, 2018, defendant filed a response in opposition to plaintiffs’ request for an enlarg ement of time, reiterating its earlier objections to allowingplaintiffs additional time to conduct title research reg arding their own claims, and further contending :
Plaintiffs’ attempt to blame the United States for this ex tension 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 pag es of discovery requests and supporting

materials, including 148 ex hibits, on December 22, 2017, being fully aware that the United States’ responses would be due a few day s before their J anuary

31, 2018 deadline.

W ith respect to its responses to plaintiffs’ discovery requests, defendant ex

plained that it

timely responded to Plaintiffs’ discovery requests, asserting

a number of leg itimate objections, including the fact that Plaintiffs’ requests soug ht information that is obtainable from some other source that is more convenient, less burdensome, or less ex pensive, and that the requests soug h t to improperly shift the burden of proof to the United States in contravention of well-settled law.

Defendant according ly

requests that the court deny plaintiffs’ enlarg ement motion. I n addition, defendant requests that if the court g rants plaintiffs’ enlarg ement motion, it also enlarg es 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 F e deral Claims (“RCF C”), “the court may , for g o od cause, ex tend the time” to file briefs in support of motions for summary

judg ment. RCF C 6(b)(1) should be liberally construed. L oveladies Harbor, I nc. v. United States, 15 Cl. Ct. 375, 381 (1988). Thus, althoug hthe rule “clearly g ives” the court “both the authority

to establish deadlines and the discretion to enforce them,” Ray mond v. Ameritech Corp., 442 F .3d 600, 605 (7th Cir. 2006); accord Sherrod v. B r eitbart, 720 F .3d 932, 938 (D.C. Cir. 2013) (“Rule 6(b) g ives 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 g ranted in the absence of bad faith on the part of the party seeking relief

-3-or prejudice to the adverse party ,’” Ahanchian v. Xenon Pictures, I nc., 624 F .3d 1253, 1259 (9th Cir. 2010) (quoting 4B Charles Alan W rig ht & Arthur R. Miller, F ederal Practice and Procedure § 1165 (3d ed. 2004)); accord J ames W m. Moore et al., Moore’s F ederal Practice § 6.06[ 2] (3d ed. 2012) (“The court g enerally will find g ood cause and g rant the ex tension unless the moving party has been neg lig ent, lacked dilig ence, acted in bad faith, or abused the privileg e of prior

ex tensions.”).

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 judg ment. F irst, 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 briefingon crossmotions for partial summary judg ment commenced. Second, plaintiffs do not ex plain why they waited until December 22, 2017, to serve a larg e discovery request on defendant. Even if plaintiffs could be ex cused 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 day s after the court g

ranted their prior enlarg ement request to serve the discovery requests, knowing full well that the deadline for defendant to respond would fall nine day s before their deadline to respond to defendant’s cross-motion.

Third, a number of the requests for admissions promulg ated by plaintiffs were, as defendant contends, unreasonably cumulative or duplicative–the parties had already ag reed to stipulations that addressed the requests. F ourth, in a sig nificant number of their discovery requests, plaintiffs soug ht information and documents that were not in defendant’s possession. Rather, the information and documents, to the ex tent they ex isted, would be in the possession of local and state g overnment ag encies or plaintiffs themselves. B y requesting the information and documents from defendant rather than from the individuals or ag encies possessingthe information and documents, plaintiffs are improperly attempting to shift the burden of proving the ex istence of a cog

niz able property

interest from themselves–where it belong s–to defendant. See, e.g ., B HL Props., L L C v. United States, No. 15-179L , 2017 W L 5618532, at *6 (F ed. Cl. Nov. 21, 2017) (“[ I ] t is [ plaintiffs’] burden to prove [ their] ownership of the land abutting the railway corridor; it is not the g overnment’s burden to disprove it.”).

Ultimately , the court finds that plaintiffs have been less-than-dilig ent 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 inex pensive determination” of this case. RCF C 1. According ly
, the court concludes that plaintiffs have not established g ood cause for an enlarg ement of time. Plaintiffs’ enlarg ement 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 I nterim Trail Use was issued; plaintiffs therefore had more than five y ears remaining in the six

y ear limitations period.

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judg ment and response to defendant’s cross-motion for partial summary judg ment no later than Wednesday, January 31, 2018

.

IT IS SO ORDERED.

s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

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