Opinion
Case No. 2:11-cv-01647 MCE CMK
03-14-2012
KLAMATH SISKIYOU WILDLANDS CENTER and KLAMATH FOREST ALLIANCE, Plaintiffs, v. PATRICIA GRANTHAM, et al., Defendants.
BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE Assistant United States Attorney David H. Becker Law Office of David H. Becker, LLC Of Attorneys for Plaintiffs
David H. Becker (OSB # 081507) Pro Hac Vice
Law Office of David H. Becker, LLC
Erin Madden (OSB # 04468) Pro Hac Vice
Cascadia Law P.C.
Elizabeth K. Crosson (CA # 262178) Local Counsel
Law Offices of Elizabeth Crosson
Attorneys for Plaintiffs
BENJAMIN B. WAGNER
United States Attorney
LYNN TRINKA ERNCE
Assistant United States Attorney
Attorneys for Defendants
STIPULATION FOR MODIFICATION TO PRETRIAL
SCHEDULING ORDER; AMENDED ORDER THEREON
Pursuant to Federal Rule of Civil Procedure 16 and Civil Local Rule 143, the parties hereby jointly and respectfully submit this stipulation requesting a modification to the Court's pretrial scheduling order. As described further below, the parties request that the Court modify the briefing schedule and hearing date for the parties' summary judgment motions, allow defendants to lodge a supplement to the administrative record, and allow briefing on a motion by plaintiffs to further augment the record with additional documents.
RECITALS
1. On January 25, 2012, counsel for plaintiffs sent a letter to counsel for defendants describing documents which plaintiffs contend should have been included in the administrative record or which appear in the administrative record in incomplete form.
2. On February 10, 2012, counsel for defendants responded by letter indicating that defendants would agree to lodge approximately 12 documents to correct or supplement the administrative record but that defendants objected to the lodging of approximately eight other documents identified by plaintiffs. Defendants indicated that they would need until approximately the last week of February/first week of March to compile the documents, prepare an amended index to the record, and copy the documents and prepare new DVDs for the parties and Court.
3. Concurrent with their motion for summary judgment, plaintiffs agreed to file a motion to augment the administrative record regarding any of the few disputed documents on which they may seek to rely.
4. Under the current Pretrial Scheduling Order, plaintiffs' opening brief on summary judgment is due on Friday, February 24, 2012. While defendants have agreed that several documents may be lodged to correct or supplement the administrative record, they need approximately two weeks to accomplish this task, and they will not be able to finalize and lodge the supplemental record with the Court before plaintiffs' opening brief is due under the current schedule. Under the circumstances, the parties believe that good cause exists for modification of the Court's Pretrial Scheduling Order.
5. The parties have agreed to a revised schedule for their cross-motions for summary judgment motions, and they jointly request that the Court modify the deadlines set in Section V of the Pretrial Scheduling Order as set forth in the table below:
+----------------------------------------------------------------------+ ¦ ¦Briefing Schedule ¦ +------------------------------------------------+---------------------¦ ¦Defendants Lodge Agreed Supplement to Record ¦03/02/2012 ¦ +------------------------------------------------+---------------------¦ ¦Plaintiffs' Motion for Summary Judgment ¦03/16/2012 ¦ +------------------------------------------------+---------------------¦ ¦Defendants' Consolidated Opposition/Cross-Motion¦05/25/2012 ¦ +------------------------------------------------+---------------------¦ ¦Plaintiffs' Consolidated Reply/Opposition ¦06/22/2012 ¦ +------------------------------------------------+---------------------¦ ¦Defendants' Reply ¦07/20/2012 ¦ +------------------------------------------------+---------------------¦ ¦Hearing on Cross-Motions ¦08/09/2012, 2:00 p.m.¦ +----------------------------------------------------------------------+
6. However, the parties disagree on the proper briefing schedule for the plaintiffs' motion to augment the record beyond the supplement that defendants will file on March 2, 2012.
7. Plaintiffs wish to simultaneously brief the merits and their motion to augment the record in a single set of briefs, according to the schedule in the table above, and to have page limits of the parties' briefs be increased to 40, 45, 30, and 15, respectively, to allow argument on the augmentation motion. Plaintiffs believe that it is more efficient to brief the augmentation issue concurrently with the merits and that it would be burdensome on their attorneys based in Portland to attend a hearing on the augmentation motion in addition to a hearing on the merits. Plaintiffs also believe this is consistent with judicial efficiency and the Court's prior practice. See, e.g., Klamath Siskiyou Wildlands Ctr. v. U.S. Forest Serv., No. 05-CV-0299-MCE-PAN, 2006 WL 1991414, at *4-*5 (E.D. Cal. July 14, 2006). Accordingly, plaintiffs propose the following schedule:
+-----------------------------------------------------------------------------+ ¦ ¦Briefing ¦ ¦ ¦Schedule ¦ +-----------------------------------------------------------------+-----------¦ ¦Defendants Lodge Agreed Supplement to Record ¦03/02/2012 ¦ +-----------------------------------------------------------------+-----------¦ ¦Plaintiffs' Motions and Consolidated Brief on Summary Judgment ¦03/16/2012 ¦ ¦and Record Augmentation (40 pp) ¦ ¦ +-----------------------------------------------------------------+-----------¦ ¦Defendants' Consolidated Opposition/Cross-Motion and Opposition ¦05/25/2012 ¦ ¦to Record Augmentation Motion (45 pp) ¦ ¦ +-----------------------------------------------------------------+-----------¦ ¦Plaintiffs' Consolidated Reply/Opposition and Reply on Record ¦06/22/2012 ¦ ¦Augmentation (30 pp) ¦ ¦ +-----------------------------------------------------------------------------+
+----------------------------------------------------------------------+ ¦Defendants' Reply (15 pp) ¦07/20/2012 ¦ +------------------------------------------------+---------------------¦ ¦Hearing on Cross-Motions and Augmentation Motion¦08/09/2012, 2:00 p.m.¦ +----------------------------------------------------------------------+
8. Defendants believe that, since there is ample time in the merits briefing schedule to resolve the augmentation motion before the opposition and reply briefs on the merits will be due, it would be much more efficient for the augmentation motion to be briefed on the normal 28-day law and motion calendar per the local rules and that the motion be heard on May 3, 2012. Plaintiffs will know by no later than March 16 which documents they want to include in a further supplement to the record. Defendants believe that resolving the augmentation motion in advance of the majority of the merits briefing would be more efficient, and less confusing and cumbersome for both the Court and the parties. As for the hearing, defendants suggest that plaintiffs could appear telephonically to lessen any burden on counsel of a May 3 hearing, if that would be acceptable to the Court. Thus, defendants propose the following schedule:
+-----------------------------------------------------------------------------+ ¦ ¦Merits ¦Record¦ ¦ ¦ ¦ ¦ ¦ ¦Motions¦Motion¦ +--------------------------------------------------------------+-------+------¦ ¦Defendants Lodge Agreed Supplement to Record ¦03/02/ ¦03/02/¦ ¦ ¦2012 ¦2012 ¦ +--------------------------------------------------------------+-------+------¦ ¦Plaintiffs' Motion for Summary Judgment and ¦03/16/ ¦03/16/¦ ¦ ¦2012 ¦2012 ¦ ¦Motion to Supplement Record (consolidated brief 40 pp) ¦ ¦ ¦ +--------------------------------------------------------------+-------+------¦ ¦Defendants' Opposition to Motion to Supplement Record ¦ ¦04/09/¦ ¦ ¦ ¦2012 ¦ +--------------------------------------------------------------+-------+------¦ ¦Plaintiffs' Reply ISO Motion to Supplement Record ¦ ¦04/19/¦ ¦ ¦ ¦2012 ¦ +--------------------------------------------------------------+-------+------¦ ¦Hearing on Motion to Supplement Record (plaintiffs' counsel ¦ ¦05/03/¦ ¦permitted to appear telephonically) ¦ ¦2012 ¦ +--------------------------------------------------------------+-------+------¦ ¦Defendants' Consolidated Opposition/Cross-Motion (35 pp) ¦05/25/ ¦ ¦ ¦ ¦2012 ¦ ¦ +--------------------------------------------------------------+-------+------¦ ¦Plaintiffs' Consolidated Reply/Opposition (20 pp) ¦06/22/ ¦ ¦ ¦ ¦2012 ¦ ¦ +--------------------------------------------------------------+-------+------¦ ¦Defendants' Reply (15 pp) ¦07/20/ ¦ ¦ ¦ ¦2012 ¦ ¦ +--------------------------------------------------------------+-------+------¦ ¦Hearing on Cross-Motions ¦08/09/ ¦ ¦ ¦ ¦2012 ¦ ¦ +-----------------------------------------------------------------------------+
STIPULATION
Based on the foregoing, the parties stipulate and agree as follows:
A. The parties respectfully request that the Court find that there is good cause to modify the pretrial scheduling order for briefing on the parties' cross-summary judgment motions as follows:
+----------------------------------------------------------------------+ ¦ ¦Briefing Schedule ¦ +------------------------------------------------+---------------------¦ ¦Defendants Lodge Agreed Supplement to Record ¦03/02/2012 ¦ +------------------------------------------------+---------------------¦ ¦Plaintiffs' Motion for Summary Judgment ¦03/16/2012 ¦ +------------------------------------------------+---------------------¦ ¦Defendants' Consolidated Opposition/Cross-Motion¦05/25/2012 ¦ +------------------------------------------------+---------------------¦ ¦Plaintiffs' Consolidated Reply/Opposition ¦06/22/2012 ¦ +------------------------------------------------+---------------------¦ ¦Defendants' Reply ¦07/20/2012 ¦ +------------------------------------------------+---------------------¦ ¦Hearing on Cross-Motions ¦08/09/2012, 2:00 p.m.¦ +----------------------------------------------------------------------+
B. The parties further request that the Court set the briefing schedule for plaintiffs' motion to augment the record based on either plaintiffs' or defendants' proposed schedules set forth above, as is most convenient to the Court.
C. Finally, since this is an action for judicial review of an administrative agency action under the Administrative Procedures Act, the parties jointly request that this Court order that the requirements in Local Rule 260 for filing separate statements of undisputed facts and oppositions be waived and that the Court order that the parties' statement of facts may be set forth in their briefs rather than in separate statements.
Respectfully Submitted,
BENJAMIN B. WAGNER
United States Attorney
By: Lynn Trinka Ernce
LYNN TRINKA ERNCE
Assistant United States Attorney
By: David H. Becker
David H. Becker
Law Office of David H. Becker, LLC
Of Attorneys for Plaintiffs
ORDER
Based on the foregoing stipulation of the parties, and good cause appearing therefore, the Court hereby modifies its Pretrial Scheduling Order as follows:
A. Defendants will lodge a supplement to the administrative record by no later than March 2, 2012. Documents in the supplement will be numbered with a Bates number series unique from the administrative record lodged on November 9, 2011. Documents lodged on November 9, 2011 will not be renumbered.
B. Plaintiffs' summary judgment motion brief shall be due on March 16, 2012. Defendants' opposition and cross-motion brief shall be due on May 25, 2012. Plaintiffs' reply and opposition brief shall be due on June 22, 2012. Defendants' reply brief shall be due on July 20, 2012. The hearing on the parties cross-summary judgment motion shall be held on August 9, 2012 at 2:00 p.m.
C. Briefing on Plaintiffs' anticipated motion to further augment the record shall be as follows: Plaintiffs' Motion to Supplement Record (to be consolidated with Plaintiffs' Motion for Summary Judgment at a combined length of 40 pages) shall be due on March 16, 2012. Defendants' Opposition to Motion to Supplement Record shall be filed not later than April 9, 2012. Plaintiffs' Reply will be due on April 19, 2012, and a hearing on the Motion to Supplement Record shall be held on May 3, 2012 at 2:00 p.m. Counsel for Plaintiffs may appear telephonically at that hearing if oral argument is deemed necessary.
D. The requirement of Local Rule 260 that the parties file separate statements of undisputed facts and oppositions is hereby waived and the parties' statements of facts may be set forth in their briefs rather than in separate statements.
IT IS SO ORDERED.
____________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE