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Case 1:06-cv-00648-RCL Document 35 Filed 07/09/2008 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA ex rel.
Stephanie Schweizer and Nancy Vee,



v.

OCE, N.V., OCE NORTH AMERICA,
OCE IMAGISTICS, and OCE-USA
HOLDINGS, INC.,




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Plaintiffs-Relators, :
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Defendants






Civil Action No:
06-0648 (RCL)
Judge Royce C. Lamberth











PLAINTIFFS-RELATORS’ MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION TO VACATE COURT’S ORDER OF JUNE 18, 2008
GRANTING PLAINTIFFS’ MOTION TO EXTEND THE TIME FOR SERVING

OCE, N.V.

Plaintiffs-Relators, by and through their counsel, respectfully file this Opposition

to Defendants’ Motion to Vacate the Court’s Order of June 18, 2008 Granting Plaintiffs’

Motion to Extend the Time for Serving Oce, N.V. In support thereof, Plaintiffs-Relators

assert as follows:

FACTUAL BACKGROUND



On April 7, 2006, Plaintiffs-Relators filed their initial Complaint in this action,

alleging that Defendants Oce, N.V., Oce, North America, Oce, Imagistics and Oce-USA

Holding, knowingly submitted false claims to the U.S. government, in violation of the

Case 1:06-cv-00648-RCL Document 35 Filed 07/09/2008 Page 2 of 5

False Claims Act, 31 U.S.C. §§ 3729, et seq.1 Pursuant to 31 U.S.C. § 3730(b)(2),

Plaintiffs-Relators filed their Complaint under seal.



On June 2, 2008, this Court Ordered that the Complaint be unsealed and served

upon the Defendants in this matter by June 17, 2008. Shortly thereafter, counsel for

Plaintiffs-Relators contacted counsel for Defendants to inquire as to whether they would

agree to waive service of the Complaint. Defense counsel agreed to waive service for

three of the Defendants but would not waive service for Defendant Oce, N.V.

At the suggestion of defense counsel, counsel for Plaintiffs-Relators agreed to

engage in discussions with defense counsel regarding whether Oce, N.V. is a necessary

party. If the parties were to agree that Oce, N.V. is not necessary, Plaintiffs-Realtors

might agree to dismiss the company as a defendant.

As of June 17, 2008, discussions between the parties regarding whether and how

to effectuate service upon Defendant Oce, N.V. were still ongoing. Accordingly, on that

date, counsel for Plaintiffs-Relators filed a Motion to Extend the Time for Serving Oce,

N.V. On June 18, 2008, the Court granted Plaintiffs-Relators’ motion. On June 23,

2008, counsel for Oce, N.V. filed a motion to vacate the Court’s order granting Plaintiffs’

their requested extension.

ARGUMENT

Counsel for Oce, N.V. contends, inter alia, that (1) defense counsel did not agree

to the filing of the motion, and (2) Plaintiffs-Relators have failed to demonstrate good


1 On December 21, 2006, Plaintiffs-Relators filed a Motion to Amend the Complaint,
along with an Amended Complaint. On December 22, 2006, the Court granted that
motion.



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Case 1:06-cv-00648-RCL Document 35 Filed 07/09/2008 Page 3 of 5

cause for extending the time within which they must serve the company. Both arguments

are without merit.

Defendants’ filing of a Motion to Vacate comes much to the surprise of Plaintiffs’

counsel. As set forth above, Plaintiffs filed their motion requesting an extension of time

to serve Defendant Oce, N.V. upon the suggestion of defense counsel that the parties

consider whether the company is a necessary party. Given this, and given that the parties

were still engaged in discussions at the time Plaintiffs had been ordered to serve all

Defendants, Plaintiff filed a motion for an extension of time within which to effectuate

service. Defendant’s contention that Plaintiffs improperly styled their motion as a

consent motion is thus disingenuous in itself.

Moreover, given Defendant’s refusal to consent to waiver of service, there is now

an independent basis for granting Plaintiffs extension of time within which to serve Oce,

N.V. Oce, N.V. is located in Venlo, the Netherlands. Accordingly, Plaintiffs can not

effectuate service here in the united States; rather it must abide by the terms of the Hague

convention, or the Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters (1965).

Plaintiffs have contacted an overseas process server, who estimates that such

service would require approximately three months. Because Plaintiffs-Relators would

have been unable to serve Oce, N.V. by June 17, 2008 regardless of whether Defendant

consented to an extension, Plaintiffs have good cause for requesting an extension of

time.2


2 Defendants cite Fed. R. Civ. P. 4(m) for the proposition that Plaintiffs-Relators have
failed to demonstrate “good cause” for granting additional time for serving Oce, N.V.
Rule 4(m) concerns the time a plaintiff has to serve the complaint and provides that the



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Case 1:06-cv-00648-RCL Document 35 Filed 07/09/2008 Page 4 of 5

CONCLUSION

For the reasons set forth above, Plaintiffs-Relators’ request that the Court DENY

Defendant’s motion to Vacate Court’s Order of June 18, 2008 Granting Plaintiffs’

Motion to Extend the Time for Serving Oce, N.V.



Date: July 9, 2008







































































































RESPECTFULLY SUBMITTED,

______/s/ H. Vincent McKnight
H. Vincent McKnight, Jr.
D.C. Bar No. 293811
ASCHRAFT & GEREL, LLP
2000 L Street, N.W., Suite 400
Washington, D.C. 20036
(202) 783-6400

___/s David Sanford______
David Sanford
D.C. Bar No. 457933
SANFORD WITTELS & HEISLER, LLP
1666 Connecticut Ave., N.W. Suite 310
Washington, D.C. 20009
(202) 742-7780


court may grant additional time for service upon a showing of “good cause.” By its
terms, Rule 4(m) does not apply to defendants located in a foreign country. Fed. R. Civ.
P. 4(m) (“This subdivision (m) does not apply to service in a foreign country under Rule
4(f) or 4(j)(1).”). Moreover, the Rule is inapplicable in the context of this qui tam action,
where the Court has set its own schedule regarding service of the complaint, and where
the complaint has, until recently, remained sealed. See 31 U.S.C.S. § 3730(b)(2) (2008)
(“The complaint . . . shall not be served on the defendant until the court so orders.”).



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Case 1:06-cv-00648-RCL Document 35 Filed 07/09/2008 Page 5 of 5

This is to certify that a true and correct copy of the foregoing Opposition to Defendants’

CERTIFICATE OF SERVICE



Motion to Vacate the Court’s Order of June 18, 2008 Granting Plaintiffs’ Motion to

Extend the Time for Serving Oce, N.V. was served electronically via the Court’s CM-

ECF system and by first-class U.S. Mail, on July 9, 2008 on the following:





















Laurie Weinstein, Esq.
United States Attorney
555 4th Street, N.W.
Washington, D.C. 20001

Michael Mukasey, Esq.
United States Attorney General
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

Jason Matechak, Esq.
Kathleen, McGuan, Esq.
Reed, Smith, LLP
1301 K Street, N.W.
Washington, D.C. 20001

















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____/s/__H. Vincent McKnight__
H. Vincent McKnight