         In the United States Court of Federal Claims
                                           No. 13-414C
                                   (Filed: September 15, 2015)

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                                                    *
ANHAM FZCO,                                         *      Motion for an Enlargement of
    d/b/a                                           *      Time; RCFC 56(d); RCFC 6(b);
    ANHAM LLC (Dubai),                              *      Partial Summary Judgment;
                                                    *      Affidavit or Declaration Required
                      Plaintiff,                    *      to Request Discovery Prior to
              v.                                    *      Responding to a Motion for
                                                    *      Summary Judgment.
THE UNITED STATES,                                  *
                                                    *
                      Defendant.                    *
                                                    *
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       Eric James Marcotte, Vedder Price, PC, 1401 I Street, NW, Suite 1100, Washington,
D.C. 20005, for Plaintiff.

        Benjamin C. Mizer, Robert E. Kirschman, Jr., Deborah A. Bynum, and James William
Poirier, U.S. Department of Justice, Civil Division, Post Office Box 480, Ben Franklin Station,
Washington, D.C. 20044, for Defendant.

______________________________________________________________________________

                                   ORDER
______________________________________________________________________________


WILLIAMS, Judge.
       On August 20, 2015, Defendant filed a motion for a 150-day enlargement of time until
February 18, 2016, to respond to Plaintiff’s motion for partial summary judgment. Plaintiff
opposed the request.
         This case involves Defendant’s alleged breach of a settlement agreement following
Plaintiff’s bid protest challenging its exclusion from a procurement for services in Afghanistan.
“The agreement provided that the Government should notify Anham within 60 days whether the
Government would award a contract to Anham.” Def.’s Mot. at 3. “However, the Government
did not notify Anham that the Government would not award Anham a contract.” Id. As grounds
for its lengthy enlargement, Defendant argued that it requires discovery before it can respond to
Plaintiff’s motion for partial summary judgment, and that the discovery period will end on
January 29. Defendant further claimed that there are genuine issues of material fact regarding
liability, and suggested that it might raise defenses of waiver, prior material breach, and
forfeiture. Specifically, Defendant may claim waiver because “Anham wanted the Government
to continue consideration of its proposals,” and may argue that Plaintiff committed a prior
material breach by failing to “disclose the subcontractors that Anham planned to use for
performance.” Def.’s Mot. at 4. Defendant expanded this argument in its Reply, asserting that
more discovery is needed “because Anham considered using a different web of subcontractors
for any new contract awarded, and it appears that Anham’s plans changed substantially” between
2011 and 2012. Def.’s Reply at 3. Defendant suggested that there are questions about Anham’s
“corporate liabilities” because there are subcontractor entities that “had actually incurred the
costs that Anham now claims as damages.” Id. at 2-3. Defendant noted that “Anham has made
surprising statements [about corporate liabilities] that we do not believe are accurate. We have
not yet made a decision concerning whether to file counterclaims based upon such statements
because we want to hear Anham’s explanations for these statements.” Id. at 3. Defendant also
argued that proceeding with Plaintiff’s motion for partial summary judgment would impede
discovery by delaying and disrupting the deposition schedule. Id. at 4.
         In its opposition, Plaintiff countered that its motion for partial summary judgment on
liability was ripe and that Defendant “fail[ed] to point to a single material fact related to liability
that it is still seeking to develop through discovery.” Pl.’s Resp. at 1, 3. Plaintiff further argued
that the parties have completed substantial discovery all “focused on damages” including
Anham’s responses to nine requests for production of documents totaling 80,198 pages, seven
sets of interrogatories, and one set of requests for admission. Id. at 3-4. Finally, Plaintiff
contended that Defendant’s “casually identifie[d] legal theories” that it might assert as defenses
were no basis for delay, because Defendant was not claiming an inability to respond to material
facts supporting Anham’s motion for summary judgment. Id. at 4.

                                             Discussion
        Defendant has requested a five-month extension of time to respond to a motion for partial
summary judgment. In seeking such a lengthy extension of time, after the Court 1 granted
Plaintiff leave to file a motion for partial summary judgment, Defendant has not invoked the
proper procedural vehicle. Under the Rules of the Court of Federal Claims, a Rule 56(d) motion
is the appropriate vehicle to request the Court to defer consideration of a motion for summary
judgment pending further discovery, not a generalized Rule 6 motion for enlargement of time.
Rule 56(d) is specifically directed to the situation at hand – a scenario where a party requires
discovery in order to respond to a motion for a summary judgment. In contrast, Rule 6 governs
general extensions of any court-ordered deadline. These Rules require markedly different
showings to secure a requested extension. Under Rule 6(b), a party must merely establish “good
cause” to secure an extension of time – a modest showing that might be met by any legitimate
reason for delay. In contrast, Rule 56(d), which governs whether to press forward with a
summary judgment motion or permit discovery, sets forth a more onerous standard with
particularized requirements. Rule 56(d) provides:
       When Facts Are Unavailable to the Nonmovant.


1
      This case was reassigned from the Honorable Edward J. Damich to the undersigned on
August 26, 2015.

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       If a nonmovant shows by affidavit or declaration that, for specified reasons, it
       cannot present facts essential to justify its opposition, the court may:
       (1) defer considering the motion or deny it;
       (2) allow time to obtain affidavits or declarations or to take discovery; or
       (3) issue any other appropriate order.


To obtain Rule 56(d) relief, a party must satisfy the following five-pronged test:
       (1) Specify the particular factual discovery being sought;
       (2) explain how the results of the discovery are reasonably expected to engender a
           genuine issue of material fact;
       (3) provide an adequate factual predicate for the belief that there are discoverable
           facts sufficient to raise a genuine and material issue;
       (4) recite the efforts previously made to obtain those facts; and
       (5) show good grounds for the failure to have discovered the essential facts
           sooner.


Jade Trading, LLC v. United States, 60 Fed. Cl. 558, 565 (2004) (quoting Theisen Vending Co.
v. United States, 58 Fed. Cl. 194, 198 (2003)). The Court will then determine whether the
“parties would be better served by pursuing discovery and deferring any dispositive motions
until further development of the record.” Id. at 566.
        Defendant is required to articulate with “some precision” the evidence Defendant hopes
to obtain, “how this evidence would likely disclose issues of material fact, and why it is unable
to access such evidence without further discovery.” Clear Creek Cmty. Servs. Dist. v. United
States, 100 Fed Cl. 78, 82 (2011) (quoting Padilla v. United States, 58 Fed. Cl. 585, 593 (2003));
Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386, 1398 (Fed. Cir. 1989). Defendant has
failed to meet these requirements here.
        This matter, which involves the breach of a single term of a settlement agreement, is
progressing at a sluggish pace. Plaintiff filed its original Complaint over two years ago in June,
2013. Discovery has been extended six times. Plaintiff’s motion for partial summary judgment
on its face appears to present a pure question of law. The motion papers total 16 pages and focus
on a term of the agreement that sets forth a maximum 60-day deadline for Defendant to notify
Plaintiff whether it had or had not been awarded a contract for services in Afghanistan. Pl.’s
Mot. for Partial Summ. J. at 2-12. Specifically, the Settlement Agreement stated that the
Government would:
       (iii) Execute a contract, or advise ANHAM that it will not be awarded a contract
       within forty (40) days from the Effective Date of this Settlement Agreement.
       Such time period may be extended beyond forty (40) days upon a written,
       substantiated showing by the United States of good cause, which will be provided
       to ANHAM. However, in no event shall the time period for an award be
       extended beyond sixty (60) days from the Effective Date of this Settlement
       Agreement.


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Id. at 3-4. According to Plaintiff, the effective date of the settlement agreement was September
30, 2011, and the Government breached the contract by responding 81 days after the deadline of
November 29, 2011. Id. at 3, 9. Defendant admitted both that this term of the settlement
agreement was accurate and that it did not notify or make an award to Anham by the 60-day
deadline. Compare Compl. at ¶¶ 14, 20 with Answer to Am. Compl. at ¶¶ 14, 20; see Pl.’s Mot.
for Summ. J. Ex. 2 at A13. Although Defendant has made vague references to potential
counterclaims or defenses, it has not pled any after two years of litigation, and had earlier
represented that “the basic facts in this case are not disputed.” J. Prelim. Status Report at 4.
Similarly, while Defendant alluded to issues regarding the extent to which Plaintiff suffered
damages by virtue of any breach, the question of damages is beyond the scope of Plaintiff’s
motion for partial summary judgment on liability. In short, Defendant has not met the standard
for Rule 56(d) relief.

                                          Conclusion
       Defendant’s motion for an enlargement of time is DENIED.
        Defendant shall file its response to Plaintiff’s motion for partial summary judgment, or
any request for Rule 56(d) relief, supported by an affidavit or declaration and comporting with
the five factors in Theisen and Jade Trading, by October 13, 2015.


                                            s/Mary Ellen Coster Williams
                                            MARY ELLEN COSTER WILLIAMS
                                            Judge




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