Conservation Congress v. U.S. Forest Service et al

Filing 58

ORDER granting 56 Motion re page limit signed by District Judge Troy L. Nunley on 12/2/13: Federal Defendants' and Defendant-Intervenors' cross-motion for summary judgment and memorandum in support, and response to Plaintiff's mo tion for summary judgment shall be filed on January 13, 2013. Plaintiff may file a response/opposition on or before January 17, 2013 at 5:00 pm. Plaintiff is ORDERED TO SHOW CAUSE, in writing within 7 days of the entry of this order, as to why it should not be sanctioned in the amount of $500.00 for failure to comply with this Court's orders. (Kaminski, H)

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UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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CONSERVATION CONGRESS

CASE NO. 2:12-cv-02800-TLN-CKD

Plaintiff,
ORDER
v.
U.S. FOREST SERVICE and
U.S. FISH AND WILDLIFE SERVICE,

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Federal Defendants.
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This matter is before the Court pursuant to a scheduling matter concerning the parties’

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motion and cross-motion for summary judgment. Because the Court finds the procedural posture

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relevant to the Court’s decision in this matter, the Court has provided a brief summary of the

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recent activity in this case.

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On February 14, 2013, upon stipulation by the parties (ECF No. 26), this case was stayed

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to allow the Forest Service to reinitiate consultation on the Northern Spotted Owl (“NSO”) for

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the Algoma Vegetation Management Project (“Algoma Project”) on the Shasta Trinity National

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Forest. (February 14, 2013 Stip. and Order, ECF No. 27). On August 16, 2013, in light of the

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Forest Service’s completion of reinitiation of consultation and associated processes under the

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National Environmental Policy Act, the Court lifted the stay, allowing Plaintiff Conservation

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Congress (“Plaintiff”) to pursue the case. (Order Lifting Stay, ECF No. 30.) Plaintiff filed a
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supplemental complaint on September 25, 2013 (ECF No. 33). Defendants U.S. Forest Service

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and U.S. Fish and Wildlife Service (collectively referred to as “Federal Defendants”) lodged and

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served Plaintiff with a supplement to the Forest Service’s administrative record on September 27,

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2013 (ECF No. 34), and the Fish & Wildlife’s administrative record on October 2, 2013 (ECF

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No. 37).

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On August 29, 2013, Defendant-Intervenors noticed that partial Project implementation

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would begin by the end of October 2013. (See Ex. A, E-mail from Scott Horngren to Mary

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Hollingsworth, et al., ECF No. 50-7.) The parties were unable to agree to a briefing schedule for

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a motion for preliminary injunction. (See Joint Status Report, ECF No. 31.) On November 6,

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2013, the parties agreed to an expedited summary judgment briefing schedule that would

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conclude in mid-January because Defendant-Intervenors anticipated operations could start

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moving into units containing NSO critical habitat by the end of January. (See Stipulation, ECF

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No. 45; see also ECF No. 50 at 3.) This schedule, which was approved by the Court in a minute

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order (ECF No. 46), required Plaintiff to file its motion for summary judgment and

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accompanying memorandum in support by November 18, 2013.

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On November 18, 2013, in the late morning, Plaintiff’s counsel requested two additional

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days (until November 20, 2013) in which to file its motion and brief because Plaintiff’s counsel

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was unable to locate files on her computer. (See Ex. B e-mail from Marianne Dugan to Julie

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Thrower, et al., ECF No. 50-2.) Federal Defendants did not oppose the motion on the condition

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that they were: (1) given additional time, from December 20 to December 23, 2013, to file their

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cross-motion for summary judgment and response to Plaintiff’s motion for summary judgment;

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and (2) the remaining deadlines remained the same. (See Mot. for 2-day Extension of Time,

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ECF No. 47.) The Court granted the parties’ request. (See Minute Order, ECF No. 49.)

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On late night of November 20, 2013, Plaintiff’s counsel informed Federal Defendants and

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Defendant-Intervenors that she was unable to file her brief because she was celebrating her

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birthday and, therefore, she would file her brief in the morning on the following day. (See Ex. C

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e-mail from Marianne Dugan to Julie Thrower, et al., ECF No. 50-3.) Plaintiff’s counsel

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suggested that Federal Defendants could file their brief a day later than or previously agreed or
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on December 24, 2013. (ECF No. 50-3.) However, Federal Defendants have informed the Court

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that they have scheduled annual leave starting December 23, 2013, with the expectation that

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Plaintiff would adhere to the schedule agreed upon by both parties. Thus, Federal Defendants

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has asked the Court to revise the briefing schedule in its November 21, 2013, Order (ECF No.

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49) to provide that only two briefs will be filed in this case: Plaintiff’s motion for summary

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judgment, due November 21, 2013; and Federal Defendants and Defendant-Intervenors cross-

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motions for summary judgment and briefs in response to Plaintiff’s motion for summary

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judgment, due on January 13, 2014. Federal Defendants contend that they have been prejudiced

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by Plaintiff’s failure to adhere to the agreed upon schedule because: (1) both counsel had

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scheduled leave; and (2) Julie Thrower had anticipated spending November 21, 2013, responding

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to Plaintiff’s motion in order to accommodate other scheduled matters, including Thanksgiving

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holiday, two oral arguments scheduled in early December, and a tentative mediation that same

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month. (ECF No. 50 at 4.)

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Plaintiff opposes Defendants’ motion alleging that the delay in filing its summary

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judgment motion was minimal, that Defendants had previous extensions that Plaintiff did not

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oppose, and that Plaintiff would be able to file a reply in a truncated time to avoid further delay.

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(ECF No. 54.) In Plaintiff’s opposition, Plaintiff also informed the Court that the summary

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judgment that it had filed exceeded the page limits set by this Court.

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Defendants’ counsel today brought to undersigned’s attention that she had
unfortunately overlooked Judge Nunley’s policy that briefs must not exceed 20
pages without prior approval. Plaintiff’s brief was 44 pages. Given the size of the
record and the number of legal issues, plaintiff’s counsel is not in good
conscience able to reduce the briefing to 20 pages. The parties are currently
discussing whether they will agree to a motion to allow overlength briefs for all
three parties.
(ECF No. 54 at 3 n.1.)

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Defendants filed a reply asserting that Plaintiff has failed to show good cause for its
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failure to comply with the Court’s schedule and further due to the excessive length of Plaintiff’s
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summary judgment motion and brief, it is even more appropriate to modify the current schedule
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as requested by Federal Defendants. (ECF No. 55 at 3.)
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The Court agrees that Plaintiff’s repeated disregard for the Court’s orders and procedures

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has caused great disarray. However, the Court fears that denying Plaintiff the opportunity to file

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a response will hinder the Court’s ability to locate important information within this case’s

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expansive record. As such, the Court declines Defendants’ invitation to foreclose Plaintiff the

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opportunity to file any sort of response to Defendants’ opposition/cross-motion for summary

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judgment. Nevertheless, the Court will require that Plaintiff submit its response in a truncated

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amount of time as to not delay these procedures further. As to Plaintiff’s failure to adhere to the

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Court’s page limits on motions, the Court construes Plaintiff’s Response to Defendants’ Motion

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to Modify Summary Judgment Briefing Schedule (ECF No. 54) as a request to extend the page

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limits and hereby grants such request with the understanding that Defendants are hereby limited

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to fifty (50) pages collectively for their opposition/cross-motion, and further that Plaintiff’s

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response is restricted to ten (10) pages. The Court also cautions the parties that further disregard

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of this Court’s orders will not be tolerated, and that no further extensions will be granted without

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a showing of good cause.

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Although the Court has allowed Plaintiff’s to file its summary judgment motion and

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briefing, the Court does not look kindly on Plaintiff’s actions concerning its repeated disregard

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for the Court’s orders and procedures. As such, Plaintiff is ordered to show cause, in writing

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within 7 days of the entry of this order, as to why it should not be sanctioned in the amount of

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$500 for failure to file its summary judgment motion in compliance with the Court’s scheduling

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order and the format specified by this Court.

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For the foregoing reasons the Court hereby orders a revised schedule as follows:

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1. The deadline for Plaintiff to file Plaintiff’s motion for summary judgment and

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memorandum in support is hereby extended to November 22, 2013. Thus, Plaintiff’s

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motion for summary judgment and memorandum in support is timely.

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2. To the extent that Plaintiff has requested an extension as to the page limit on its
motion for summary judgment, Plaintiff’s request is GRANTED.
3. Federal Defendants’ and Defendant-Intervenors’ cross-motion for summary judgment
and memorandum in support, and response to Plaintiff’s motion for summary
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judgment shall be filed on January 13, 2013 and is collectively limited to fifty (50)

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pages.

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4. Plaintiff may file a response/opposition on or before January 17, 2013 at 5:00 pm, not

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to exceed ten (10) pages. Failure to comply with this deadline will result in a waiver

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of Plaintiff’s right to respond.

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5. Plaintiff is ORDERED TO SHOW CAUSE, in writing within 7 days of the entry of

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this order, as to why it should not be sanctioned in the amount of $500 for failure to

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comply with this Court’s orders.

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IT IS SO ORDERED.

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Dated: December 2, 2013

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Troy L. Nunley
United States District Judge

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