Opinion
CASE NO. 2:19-cv-01059-RAJ-JRC
05-11-2020
STATE OF WASHINGTON, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants.
SUMMARY JUDGMENT BRIEFING SCHEDULING ORDER
This matter is before the Court on referral from the District Court. See Dkt. 19.
The parties have been unable to reach agreement and request that the Court enter a briefing scheduling order regarding summary judgment briefing in this matter. See Dkts. 64, 65. Plaintiffs the State of Washington and defendants agree that briefing should be as follows: first, plaintiffs' summary judgment briefs; second, defendants' cross-motions for summary judgment and their responses to plaintiffs' motions; third, plaintiffs' replies in support of their motions and responses to defendants' cross-motions; and fourth, defendants' replies in support of their cross-motions.
For their part, plaintiffs Citizens of the Ebey's Reserve and Paula Spina (collectively "COER") argue that briefing should be consolidated: first, plaintiffs' motions for summary judgment; second, defendants' responses to plaintiffs' motions, which shall be treated as cross-motions for summary judgment, as well as any separate cross-motions for any affirmative defenses that defendants wish to file; third, plaintiffs' reply briefs in support of their motions and their responses to any defense cross-motion on the basis of affirmative defenses; and fourth, if defendants filed cross-motions on the basis of affirmative defenses, replies in support of those motions.
Defendants assert that their briefing schedule ensures that defendants will not be limited to a strictly responsive position and will be able to address any new arguments raised in "Plaintiff Washington's or COER's and Ms. Spina's opposition briefs." Dkt. 64, at 2. Plaintiffs argue that it would be inappropriate to allow defendants to have the last word on plaintiffs' summary judgment motion. See Dkt. 65, at 1. Plaintiffs further argue that because this matter is based on review of the Administrative Record, there is no need for cross-motions. They assert that without any factual disputes and where the issues are purely legal, "denial of one party's summary judgment motion necessarily requires granting the other party's motion for summary judgment." Dkt. 65, at 2.
Plaintiff State of Washington and defendants have the better of the argument. Contrary to COER's arguments, it appears that there is at least a likelihood that there will be factual issues argued on summary judgment. This is because COER asserts in its complaint that it seeks permanent injunctive relief, and a permanent injunction requires consideration of factors other than simply whether the Administrative Record reveals that plaintiff is correct as a matter of law. See Dkt. 16, at 36, 2:19-cv-01062-RAJ-JRC. Thus the premise for COER's argument that a cross-motion is unnecessary unless defendants raise affirmative defenses is incorrect.
Further, if defendants file a cross-motion for summary judgment, they are also entitled to a reply in support of the motion. See Local Civil Rule 7(b)(3). Of course, defendants may not use the reply brief in support of their cross-motion as an opportunity to have the last word on plaintiffs' summary judgment briefing.
Therefore, the Court grants the joint proposed scheduling motion requested by plaintiff State of Washington and defendants (Dkt. 64) and enters the following scheduling order:
(1) Plaintiffs' motions for summary judgment on all claims are due on or before June 12, 2020;Plaintiff COER's scheduling motion (Dkt. 65) is denied.
(2) Defendants' cross motions for summary judgment and their briefs in opposition to plaintiffs' motions for summary judgment on all claims are due on or before July 31, 2020;
(3) Plaintiffs' oppositions to defendants' cross-motions and their replies in support of their own motions are due on or before September 11, 2020.
(4) Defendants' replies in support of their own motions are due on or before October 23, 2020 and shall be directed toward arguments raised in plaintiffs' oppositions to defendants' cross-motions.
Dated this 11th day of May, 2020.
/s/_________
J. Richard Creatura
United States Magistrate Judge