American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 86

MOTION to Amend/Correct 85 Judgment, Pursuant to Rule 59 by Alaska Library Association, American Booksellers Foundation for Free Expression, American Civil Liberties Union of Alaska, Association of American Publishers, Inc., Book Blizzard LLC, Bosco's, Inc., Comic Book Legal Defense Fund, David & Melissa LLC, Donald R. Douglas, Entertainment Merchants Association, Freedom to Read Foundation. (Attachments: # 1 Proposed Order [Proposed] Amended Judgment)(Bamberger, Michael)

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Michael A. Bamberger (pro hac vice) SNR Denton US LLP 1221 Avenue of the Americas New York, New York 10020 Phone: 212-768-6756 michael.bamberger@snrdenton.com D. John McKay Law Offices of D. John McKay 117 E. Cook Ave. Anchorage AK 99501 Phone: 907-274-3154 mckay@alaska.net Alaska Bar No. 7811117 Thomas Stenson ACLU of Alaska Foundation 1057 W. Fireweed Lane - Suite 207 Anchorage, AK 99503 Phone: 907-258-0044 tstenson@akclu.org Alaska Bar No. 0808054 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ALASKA AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, et al. Plaintiffs, v. Civil No. 3:10-cv-00193-RRB JOHN BURNS, in his official capacity as ATTORNEY GENERAL OF THE STATE OF ALASKA, MOTION TO AMEND JUDGMENT PURSUANT TO RULE 59 Defendant. Plaintiffs respectfully move this Court, pursuant to FED. R. CIV. P. 59, to amend the Judgment entered herein. On June 30, 2011, this Court entered an Order declaring that AS 11.61.128, both as amended by Sections 9-12 in Senate Bill No. 222, 26th Leg., 2d Sess., and as prior to amendment, was unconstitutional. (Docket 84) The Court granted plaintiffs’ motion for summary judgment, in which plaintiffs had sought a declaration of unconstitutionality Motion to Amend Judgment Pursuant to Rule 59 American Booksellers et al. v. John Burns, Case 3:10-cv-00193-RRB 17730756\V-3 1 and a permanent injunction (Docket 84, p. 4), and denied defendant’s cross-motion for summary judgment. On July 11, 2011, the Court entered Judgment in favor of plaintiffs, granting plaintiffs summary judgment. (Docket 85) While the Judgment recited that summary judgment had been granted in favor of plaintiffs, the Judgment (a) did not specifically recite that AS 11.61.128 had been held unconstitutional, and (b) did not specifically set forth that the defendant and his agents were permanently enjoined and prohibited from enforcing AS 11.61.128, both as amended by Sections 9-12 in Senate Bill No. 222, 26th Leg., 2d Sess., and as prior to amendment. Pursuant to FED. R. CIV. P. 58, a final judgment must be a “self-contained document, saying who has won and what relief has been awarded.” In re Taumoepeau, 523 F.3d 1213, 1217 n. 4 (10th Cir. 2008) (citing MOORE’S FEDERAL PRACTICE § 58.05(4)(a) (3d ed., 2008)); see also Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994). Such a statement of relief with respect to an injunction is also necessary to comply with Rule 65(d), which requires that an injunction “state its terms specifically” and “describe in reasonable detail . . . the act or acts restrained.” FED. R. CIV. P. 65(d). Therefore, plaintiffs respectfully request this Court enter an Amended Judgment, in the form attached hereto, specifically reciting that the act has been held unconstitutional, and permanently enjoining defendant attorney general and his agents from enforcing AS 11.61.128, both as amended by Sections 9-12 in Senate Bill No. 222, 26th Leg., 2d Sess., and as prior to amendment. Motion to Amend Judgment Pursuant to Rule 59 American Booksellers et al. v. John Burns, Case 3:10-cv-00193-RRB 17730756\V-3 2 Plaintiffs have requested the consent of defendant to the amendment. By email dated July 21, 2011, counsel to defendant responded that “We think that Judge Beistline was clear in his judgment. If you feel otherwise, then of course, you can file your proposed judgment.” Dated: July 25, 2011 s/ Michael A. Bamberger Michael A. Bamberger (pro hac vice) SNR Denton US LLP 1221 Avenue of the Americas New York, New York 10020 Phone: 212-768-6756 michael.bamberger@snrdenton.com D. John McKay Law Offices of D. John McKay 117 E. Cook Ave. Anchorage AK 99501 Phone: (907) 274-3154 mckay@alaska.net Alaska Bar No. 7811117 The undersigned certifies that a true and correct copy of the foregoing Plaintiffs’ Motion to Amend Judgment Pursuant to Rule 59 was served via electronic filing this 25th day of July, 2011, upon counsel for Defendants. s/ Michael A. Bamberger Michael A. Bamberger Thomas Stenson ACLU of Alaska Foundation 1057 W. Fireweed Lane - Suite 207 Anchorage, AK 99503 Phone: 907-258-0044 tstenson@akclu.org Alaska Bar No. 0808054 Attorneys for Plaintiffs Motion to Amend Judgment Pursuant to Rule 59 American Booksellers et al. v. John Burns, Case 3:10-cv-00193-RRB 17730756\V-3 3

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