Opinion
Case No. 2:10-cv-01552 GGH P
09-06-2011
CASEY D. MAYER, Plaintiff, v. LOUIS REDIX, M.D., et al., Defendants.
BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE Assistant United States Attorney
BENJAMIN B. WAGNER
United States Attorney
LYNN TRINKA ERNCE
Assistant United States Attorney
Attorneys for Federal Defendants
"Federal Defendants" are, collectively, Ross Quinn; Louis Sterling, Kathryn Garrett; Eduardo Ferriol; and Roberto Acosta. Dr. Louis Redix is not a Federal Defendant.
EX PARTE APPLICATION
FOR AN ORDER EXTENDING
THE TIME FOR FEDERAL
DEFENDANTS1 TO FILE THEIR
REPLY BRIEF IN SUPPORT OF
MOTION TO DISMISS; ORDER
Federal defendants Ross Quinn, M.D., Louis Sterling, Kathryn Garrett, Eduardo Ferriol, and Roberto Acosta (collectively "Federal Defendants") respectfully request that the Court enter an order extending the time for them to file their reply brief in support of their motion to dismiss plaintiff's first amended complaint. In support of this application, Federal Defendants respectfully state as follows:
1. Federal Defendants filed their motion to dismiss plaintiff's first amended complaint on June 17, 2011. Docket 31.
2. Plaintiff requested additional time to file his opposition to the motion and, on July 18, 2011, the Court extended the time for plaintiff to file his opposition by 45 days to August 31, 2011. Docket 33. The Court ordered Federal Defendants to respond within 7 days thereafter. Id.
3. Counsel for the Federal Defendants received plaintiff's opposition brief on August 31, 2011. Ernce Decl., ¶ 2.
4. In response to Federal Defendants' argument that he failed to exhaust his administrative remedies with the Bureau of Prisons ("BOP"), plaintiff has raised factual issues which will require follow-up and investigation by BOP before Federal Defendants may properly and fully respond. Id., ¶ 3.
5. Given the upcoming Labor Day holiday weekend and the need for BOP to have sufficient time to look into the issues raised in plaintiff's opposition brief, it will be extremely difficult for Federal Defendants to file their reply brief within 7 days as ordered by the Court. Id., ¶ 4.
6. Accordingly, Federal Defendants respectfully request that the Court grant them additional time to file their reply brief, to and including September 30, 2011. Federal Defendants are requesting an approximately three-week extension because the BOP agency counsel assigned to this case will be unavailable the entire week of September 12, 2011, and Federal Defendants' counsel will be unavailable the week of September 19, 2011. Id., ¶ 5.
ARGUMENT
The Court Should Extend The Time For Defendants To File Their Reply Brief
Under Local Rule 144(c), the Court may, in its discretion, grant an ex parte request for extension of time to respond to a complaint "upon the affidavit of counsel that a stipulation extending time cannot reasonably be obtained, explaining the reasons why such a stipulation cannot be obtained, and the reasons why an extension is necessary." The requirements for ex parte relief are met here.
The requested extension is appropriate given the need for the Bureau of Prisons to look into the issues raised in plaintiff's opposition brief concerning administrative exhaustion and because the 3-day Labor Day weekend will make it extremely difficult for BOP to complete its review of the issues and for Federal Defendants to file a proper and complete reply brief by the current due date, September 7, 2011. Additionally, an approximately three-week extension is appropriate and necessary given the upcoming unavailability of both the BOP agency counsel assigned to this matter and Federal Defendants' counsel.
A stipulation extending time cannot be reasonably obtained since plaintiff is incarcerated at the Federal Correctional Institution in Lompoc, California, and it is anticipated that efforts to communicate with plaintiff would be difficult and time-consuming under the circumstances. Ernce Decl., ¶ 6. Federal Defendants will serve this application on plaintiff via overnight mail. Id.
CONCLUSION
For the reasons discussed above, Federal Defendants respectfully request that the Court extend the time for them to file their reply brief to September 30, 2011.
Respectfully submitted,
BENJAMIN B. WAGNER
United States Attorney
LYNN TRINKA ERNCE
Assistant United States Attorney
ORDER
Based on Federal Defendants' ex parte application and accompanying declaration, and good cause appearing therefore,
IT IS HEREBY ORDERED that Federal Defendants' application is granted;
IT IS HEREBY FURTHER ORDERED that Federal Defendants shall have until September 30, 2011 to file their reply brief in support of their motion to dismiss plaintiff's first amended complaint.
GREGORY G. HOLLOWS
United States Magistrate Judge