Rocky Mountain Farmers Union et al v. Corey, et al

Filing 237

ORDER ON DEFENDANTS' MOTION TO STRIKE (Doc. 212) and EX PARTE MOTION APPLICATION FOR LEAVE TO TAKE DISCOVERY AND PROVIDE SUPPLEMENTAL BRIEFING (Doc. 233) signed by District Judge Lawrence J. O'Neill on May 23, 2011. (Lira, I)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 ROCKY MOUNTAIN FARMERS UNION, REDWOOD COUNTY MINNESOTA CORN AND SOYBEAN GROWERS, PENNY NEWMAN GRAIN, INC., GROWTH ENERGY, RENEWABLE FUELS ASSOCIATION, REX NEDEREND, FRESNO COUNTY FARM BUREAU, NISEI FARMERS LEAGUE, and CALIFORNIA DAIRY CAMPAIGN, CASE NO. CV-F-09-2234 LJO DLB ORDER ON DEFENDANTS’ MOTION TO STRIKE (Doc. 212) and EX PARTE MOTION APPLICATION FOR LEAVE TO TAKE DISCOVERY AND PROVIDE SUPPLEMENTAL BRIEFING (Doc. 233) 15 16 Plaintiffs, vs. 17 18 JAMES N. GOLDSTENE, Executive Officer of the California Air Resources Board, 19 20 Defendants. and related intervenor and consolidated actions and amici curiae. 21 / 22 Defendants and defendant-intervenors (“defendants”) move to strike four declarations filed by 23 plaintiffs Growth Energy and Renewable Fuels Association (“Rocky Mountain plaintiffs”) in reply to 24 their preliminary injunction motion. (Doc. 212). Defendants argue that submitting new evidence for 25 the first time in a reply brief is improper.1 Moreover, defendants contend that because the briefing 26 schedule does not allow for them to file a sur-reply, they will have no opportunity to dispute the alleged 27 28 1 Defendants also object to the declarations on evidentiary grounds. 1 1 facts introduced by the Rocky Mountain plaintiffs in their reply brief and declarations. The Rocky 2 Mountain plaintiffs respond that the declarations are proper, because this evidence was unavailable at 3 the time that they filed the pending preliminary injunction motion. In addition, the Rocky Mountain 4 plaintiffs contend that defendants fail to establish good cause to file a sur-reply brief. 5 While the motion to strike was pending, the Rocky Mountain plaintiffs filed a second declaration 6 by Robert Whiteman. Defendants filed an ex parte application for leave for discovery and supplemental 7 briefing to address Mr. Whiteman’s declaration. In the alternative, defendants move to strike the second 8 Whiteman declaration. 9 The Court finds good cause to allow the Rocky Mountain plaintiffs’ declarations. At the time 10 the preliminary injunction motion was filed, the low carbon fuel standard (“LCFS”) was not yet in effect. 11 In the midst of briefing, the LCFS went into effect. Thus, the alleged facts contained in the briefs were 12 unavailable at the time the motion was filed. Accordingly, defendants’ motion to strike the declarations 13 filed with the Rocky Mountain plaintiffs’ reply to their preliminary injunction motion is DENIED. 14 Because this Court shall consider this evidence, however, this Court finds good cause to GRANT 15 defendants’ request to file a sur-reply. In the interest of justice, defendants shall be allowed to address 16 these newly-presented facts. Accordingly, defendants shall file a sur-reply no later than June 7, 17 2011. 18 Although this Court shall allow defendants to file a sur-reply, this Court DENIES defendants’ 19 attendant request to conduct discovery. The pending preliminary injunction and summary judgment 20 motions were filed prior to discovery, a fact this Court shall consider in deciding these motions. 21 Defendants do not need to conduct discovery to address the evidence presented. 22 This Court shall rule on the motions as submitted with the addition of defendants’ sur-reply, as 23 allowed by this order. 24 IT IS SO ORDERED. 25 Dated: b9ed48 May 23, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 26 27 28 2

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