Sanderson Farms, Incorporated v. Tyson Foods, Incorporated

Filing 22

MOTION filed by Appellant Tyson Foods, Incorporated to extend filing time for opening brief and appendix. Date of service: 06/09/2008 [997871763] [08-1461] (EPJ)

Sanderson Farms, Incorporated v. Tyson Foods, Incorporated

Doc. 22

No. 08-1461 ________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________ Sanderson Farms, Inc. and Perdue Farms, Inc., Appellees, v. Tyson Foods, Inc., Appellant. _______________________ APPELLANT TYSON FOODS, INC.'S MOTION FOR EXTENSION OF BRIEFING SCHEDULE Pursuant to Federal Rule of Appellate Procedure 27 and Local Rule 31(c), Appellant Tyson Foods, Inc. ("Tyson") respectfully submits this motion to request a 30-day extension of the time in which to file the appendix and opening brief as set forth in this Court's Briefing Order of May 13, 2008. Counsel for Tyson has contacted opposing counsel, who currently opposes Tyson's motion. "Good cause" and "extraordinary circumstances" exist to grant the extension of time, Briefing Order at 2, because Tyson and Appellees presently are involved in settlement negotiations that may

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obviate the need for this appeal as well as the underlying controversy currently pending before the district court.1 These settlement negotiations, if permitted to run their course, may avoid the need for any briefing in this matter and any consideration of this appeal by the Court. In light of the ongoing settlement discussions, Tyson is filing this request for an extension two weeks before its brief is due and thus "well in advance of the date the brief is due." Local R. 31(c). Tyson's request for an extension of time would not result in prejudice any party to this appeal. The appellees' rights would not be affected by an extension of time as they currently have the benefit of the district court's order, which Tyson is seeking to set aside in this appeal. As such, an extension of time would not impose any prejudice on appellees. To the contrary, it would be extraordinarily and unnecessarily wasteful for the parties to be required to prepare, finalize

1

See Gardner v. Bishop, 983 F.2d 1056 (table), 1993 WL 7947, at *1 (4th Cir. Jan. 19, 1993) (per curiam) (unpublished) (noting district court granted an extension of a discovery deadline by more than three months on account of parties' settlement discussions); Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir. 1997) ("assuming arguendo that the possibility of settlement constitutes `good cause'" as to extending time for filing notice of appeal); see generally Byrum v. Bear Inv. Co., 936 F.2d 173, 174 (4th Cir. 1991) (recognizing that the law encourages settlements). 2

and file appellate briefs (and a joint appendix) when they are engaged in negotiations to settle voluntarily the dispute at issue in this appeal. Finally, an extension of time would not unduly disrupt or delay the resolution of any appeal in this matter in the event that negotiations ultimately prove to be unsuccessful at this juncture. If Tyson's motion is granted, the briefing cycle would close on or around September 8, 2008. This Court's 2008-09 term does not begin until September 22, 2008, the case has not been set for oral argument, and no party has requested expedited treatment of the appeal. Therefore, Tyson respectfully suggests that the extension of time would not result in inconvenience to either the parties or the Court.

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CONCLUSION For the foregoing reasons, Tyson respectfully requests that the deadline for filing the Appendix and Opening Brief be extended for 30 days from June 23, 2008 up to and including July 23, 2008. Respectfully submitted, _/s/ Carter G. Phillips__________ Caitlin J. Halligan Helene D. Jaffe WEIL, GOTSHAL & MANGES, LLP 767 5th Avenue New York, NY 10153 Telephone: [phone] Facsimile: [phone] William J. Murphy John J. Connolly MURPHY & SHAFFER, LLC 36 South Charles Street Suite 1400 Baltimore, MD 21201-3109 Telephone: [phone] Facsimile: [phone] Counsel for Tyson Foods, Inc. Carter G. Phillips Paul J. Zidlicky Eamon P. Joyce SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 Telephone: [phone] Facsimile: [phone]

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CERTIFICATE OF SERVICE I hereby certify that on June 9, 2008, I served a copy of Appellant's Motion for Extension of Briefing Schedule to: to counsel for appellees, Randall K. Miller at Arnold & Porter LLP, 1600 Tysons Boulevard, Suite 900, McLean, VA 22101, and Nicholas M. DePalma at Arnold & Porter LLP, 555 12th Street, NW, Washington, DC 20004, by way of First Class United States mail, electronic mail, and through this Court's CM/ECF system.

June 9, 2008

___/s/ Eamon P. Joyce__________ Eamon P. Joyce