Powell's Books, Inc., et al v. John Kroeger, et al

Filing 18

Filed (ECF) Appellants American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Bluejay, Inc., Colette's: Good Food Hungry Minds, LLC, Comic Book Legal Defense Fund, Dark Horse Comics, Inc., Freedom to Read Foundation, Inc., Old Multnomah Book Store, Ltd., Powell's Books, Inc. and St. John's Booksellers, LLC in 09-35153 Motion for miscellaneous relief [Notice of Filing on June 4, 2009 of Plaintiff-Appellants' Motion for Reconsideration of the Order on their Motion to File a Single Excerpt of Record and for Combined Oral Argument, and Plaintiffs-Appellants' Motion for an Extension of Time]. Date of service: 06/08/2009. [6949437] [09-35153, 09-35154] (RMZ)

Powell's Books, Inc., et al v. John Kroeger, et al

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No. 09-35153, 09-35154 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT POWELL'S BOOKS, INC., et al., Plaintiffs-Appellants, v. JOHN KROGER, et al., Defendants-Appellees. AMERICAN CIVIL LIBERTIES UNION OF OREGON, et al., Plaintiffs-Appellants, v. JOHN KROGER, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Oregon Hon. Michael W. Mosman Case No. CV-08-501-MO

PLAINTIFFS-APPELLANTS' MOTION FOR RECONSIDERATION OF THE ORDER ON THEIR MOTION TO FILE A SINGLE EXCERPT OF RECORD AND FOR COMBINED ORAL ARGUMENT, AND PLAINTIFFS-APPELLANTS' MOTION FOR AN EXTENSION OF TIME

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P.K. Runkles-Pearson, OSB No. 061911 [e-mail] STOEL RIVES LLP 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204 Telephone: [phone] Facsimile: [phone] Cooperating Attorney ACLU Foundation of Oregon Attorney for Plaintiffs-Appellants ACLU of Oregon, et al. Michael A. Bamberger [e-mail] Richard M. Zuckerman [e-mail] SONNENSCHEIN NATH & ROSENTHAL LLP 1221 Avenue of the Americas 24th Floor New York, NY 10020 Telephone: [phone] Facsimile: [phone] Attorney for Plaintiffs-Appellants Powell's Books, Inc., et al.

Denise Fjordbeck, OSB No. 822578 [e-mail] Oregon Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Telephone: [phone] Facsimile: [phone] Attorney for Defendants-Appellees John Kroger, et al.

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Plaintiffs-Appellants Powell's Books, Inc., et al. in 09-35153 and PlaintiffsAppellants ACLU of Oregon, et al. in 09-35154 respectfully move for reconsideration of the Order entered on June 3, 2009 (the "June 3 Order"), which consolidated these appeals and directed that a consolidated opening brief be filed by June 5, 2009. Plaintiffs-Appellants respectfully request that the Court, upon reconsideration, modify the June 3 Order to direct that a single excerpts of record be filed on the two appeals, and that the two appeals be argued together, but that the cases not be consolidated, so that separate briefs will filed in the two appeals. Alternatively, Plaintiffs-Appellants request that this Court grant PlaintiffsAppellants an extension of time to file a consolidated brief until two weeks after entry of an Order on this motion. On May 7 and 8, Plaintiffs-Appellants in these two cases filed separate motions requesting that this Court hear argument on the cases on the same day and allow them to file a single excerpt of record. These appeals arise out of the same proceedings and same decision rendered in the United States District Court for the District of Oregon. The district court's decision treated the claims of Powell's Books, Inc., et al. (Plaintiffs-Appellants in No. 09-35153) very differently from the claims of American Civil Liberties Union of Oregon, et al. (Plaintiffs-Appellants in No. 09-35154). Therefore, the two sets of Plaintiffs-Appellants filed separate notices of appeal, represented by separate
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counsel, and are prepared to file separate briefs on appeal, raising different issues. The motion for a combined excerpt of record and for combined argument was made to promote judicial efficiency in the hearing of two different appeals. On June 3, 2009, this Court construed Plaintiffs-Appellants' motions as requesting consolidation of the cases for all purposes and granted the motions as construed. It ordered Plaintiffs-Appellants to file a joint brief on June 5, 2009-- two days after entry of the June 3 Order. Plaintiffs-Appellants respectfully request that this Court reconsider its June 3 Order. To clarify, Plaintiffs-Appellants did not intend to request consolidation for all purposes, but only to file a joint excerpt of record and a joint oral argument. Plaintiffs-Appellants in 09-35153 have different interests and, therefore, different approaches to this appeal, from Plaintiffs-Appellants in 09-35154. The two sets of Plaintiffs-Appellants believe that the separate briefs that they have written are the best mechanism to clarify those different interests and approaches for the Court. Because no party had sought consolidation, the two sets of Plaintiffs-Appellants had been proceeding with the expectation that they would file their separate opening briefs on the schedule previously set by this Court-- in 09-35153 on June 4, 2009, and in 09-35154 on June 5, 2009. Each of those opening briefs is substantially complete, and would have been filed by that deadline but for the Court's entry of the June 3 Order.
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Plaintiffs-Appellants respectfully request that the Court modify the June 3 Order to grant the relief originally sought, so that there is a combined excerpt of record, and combined oral argument, and that the Court direct that the separate briefs on the two appeals be filed within three business days after entry of the Order. If the Court declines to reconsider its June 3 Order, Plaintiffs-Appellants respectfully request that the Court extend the time to file a consolidated brief to two weeks after the entry of the Court's Order on this motion for reconsideration. Plaintiffs-Appellants' briefs are substantially completed. However, combining two very different briefs into one, and coordinating regarding the substance of that consolidated brief, would require counsel to devote significant additional time. In addition, counsel request the extension of time to allow the many PlaintiffsAppellants in this matter to review the final document before filing.

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WHEREFORE, Plaintiffs-Appellants respectfully request that this Court reconsider its June 3, 2009 order and that, in the alternative, the Court extend the time to file a joint opening brief to a date two weeks after the entry of the Court's order on this motion for reconsideration. Dated June 4, 2009. STOEL RIVES LLP s/ P. K. Runkles-Pearson P. K. Runkles-Pearson, OSB No. 061911 Attorney for Plaintiffs-Appellants ACLU of Oregon, et al. in 09-35154 SONNENSCHEIN NATH & ROSENTHAL LLP s/ Michael A. Bamberger (with permission) Michael A. Bamberger Richard M. Zuckerman [e-mail] Attorney for Plaintiffs-Appellants Powell's Books, Inc., et al. in 09-35153

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CERTIFICATE OF SERVICE United States Court of Appeals Docket Number: No. 09-35154 I hereby certify that I electronically filed the foregoing PLAINTIFFSAPPELLANTS' MOTION FOR RECONSIDERATION OF THE ORDER ON THEIR MOTION TO FILE A SINGLE EXCERPT OF RECORD AND FOR COMBINED ORAL ARGUMENT, AND PLAINTIFFS-APPELLANTS' MOTION FOR AN EXTENSION OF TIME with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on June 4, 2009. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated June 4, 2009. STOEL RIVES LLP s/ P. K. Runkles-Pearson P. K. Runkles-Pearson, OSB No. 061911 Attorney for Plaintiffs-Appellants ACLU of Oregon, et al. in 09-35154

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