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,
OCE, N.V., OCE NORTH AMERICA,
OCE IMAGISTICS, and OCE-USA
Civil Action No:
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
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:
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
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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.
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
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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
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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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
______/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
___/s David Sanford______
D.C. Bar No. 457933
SANFORD WITTELS & HEISLER, LLP
1666 Connecticut Ave., N.W. Suite 310
Washington, D.C. 20009
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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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
____/s/__H. Vincent McKnight__
H. Vincent McKnight