Opinion
CASE NO. 1:09-cv-00810-SKO
01-13-2012
JOHN H. McKOWN, IV, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
PRELIMINARY SCHEDULING ORDER RE: BRIEFING OF ADMINISTRATIVE PROCEDURE ACT CLAIMS
Administrative Record to be Certified and Lodged: 3/9/2012
Briefing Schedule Deadlines:
Plaintiff's Opening Memorandum: 4/6/2012
Defendants' Opening Memorandum: 5/4/2012
Plaintiff's Responsive Memorandum: 5/18/2012
Defendants' Responsive Memorandum: 6/1/2012
Hearing: 7/11/2012 at 9:30 a.m., Courtroom 7
I. Date of Scheduling Conference
January 10, 2012.
II. Appearances of Counsel
Moises Aviles, Esq., appeared on behalf of Plaintiff.
Mark Barron, Esq., and Dominika Tarczynska, Esq., appeared on behalf of Defendants.
III. Motion Briefing Schedule
At this time, the Court is conducting a judicial review of Plaintiff's claims arising under the Administrative Procedures Act ("APA"). All of Plaintiff's non-APA claims remained stayed pursuant to the Court's November 18, 2011, order. (Doc. 47.)
The briefing schedule for the APA claims shall be as follows:
Defendants shall certify and lodge the administrative record on or before 3/9/2012.
Plaintiff shall file his opening memorandum on or before 4/6/2012.
Defendants shall file their opening memorandum on or before 5/4/2012.
Plaintiff shall file his responsive memorandum on or before 5/18/2012.
Defendants shall file their responsive memorandum on or before 6/1/2012.
The matter is currently scheduled for hearing on 7/11/2012, at 9:30 a.m. in Courtroom 7. If the Court determines that oral argument is not necessary, the Court will inform the parties and vacate the hearing.
IV. Consent to the Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to conduct all further proceedings in this case, including trial, before the Honorable Sheila K. Oberto, U.S. Magistrate Judge.
V. Related Matters Pending
On May 18, 2009, Plaintiff also filed an action in the United States Court of Federal Claims ("CFC"), alleging claims related to the facts in this action. See McKown v. United States, Case No. 09-371 L (Fed. Cl.). That action was stayed on September 25, 2009, pending the review by the United States Department of Interior's Office of Hearing and Appeals ("OHA"). (See Doc. 24, p. 3, n.2.) On June 20, 2011, ten days before the Interior Board of Lands Appeal issued its final decision affirming the OHA's ruling, the United States filed a motion to dismiss the CFC case, arguing that because Plaintiff is simultaneously pursuing a separate case premised on the same operative facts in this Court, 28 U.S.C. § 1500 divests the CFC of jurisdiction. (Doc. 49, 5:11-14.) That motion is fully briefed and currently pending before the CFC. (Doc. 49, 5:14-15.)
Defendants are ordered to file a status report informing this Court of the CFC's decision within five (5) days of the issuance of any ruling.
VI. Compliance with Federal Procedure
All parties are expected to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and to keep abreast of any amendments thereto. The Court must insist upon compliance with these Rules if it is to efficiently handle its increasing case load and sanctions will be imposed for failure to follow the Rules as provided in both the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California.
VII. Effect of this Order
The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to dispose of this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent status conference.
The dates set in this Order are considered to be firm and will not be modified absent a showing of good cause even if the request to modify is made by stipulation. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate, attached exhibits, which establish good cause for granting the relief requested.
The failure to comply with this order may result in the imposition of sanctions.
IT IS SO ORDERED.
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE