Murphy v. United States Forest Service, et al.

Filing 29

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr. on 5/28/2014 ORDERING that a second amended complaint shall be filed no later than 7/11/2014. Defendants' motion to dismiss due 7/21/2014. Plaintiff's motion for preliminary relief due by 7/21/2014. Parties shall file a joint status report on 10/1/2014. A Status Conference is scheduled for 10/27/2014 at 9:00 AM in Courtroom 10. (Zignago, K.)

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NOSSAMAN LLP
PAUL S. WEILAND (CA 237058)
[e-mail]
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
Telephone: [phone]
Facsimile: 949.833.7878
Attorneys for Plaintiff
Dennis D. Murphy, Ph.D.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS D. MURPHY, PH.D.

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Case No: 2:13-cv-02315-GEB-AC

Plaintiff,
STIPULATION AND [PROPOSED]
ORDER

vs.

UNITED STATES FOREST SERVICE;
THOMAS TIDWELL, in his official capacity as
Chief of the United States Forest Service;
NANCY J. GIBSON, in her official capacity as Date Action Filed: November 6, 2013
Forester of the United States Forest Service;
UNITED STATES FISH AND WILDLIFE
SERVICE; DANIEL ASHE, in his official
capacity as direct of the United States Fish and
Wildlife Service
Defendants.

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2-13-cv-02315-GEB-AC - Murphy v USFS - Stipulation and Proposed Order re Briefing Schedule.doc
Case No. 2:13-cv-02315-GEB-AC

STIPULATION AND [PROPOSED] ORDER

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Plaintiff served his Complaint in this matter on November 13, 2013. Pursuant to Federal

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Rule of Civil Procedure 4(i), Defendants’ responsive pleading was due on January 13, 2014. The

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parties stipulated to an extension of 15 days, up to and including January 28, 2014, for

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Defendants to respond. In submitting the Joint Scheduling Report, Plaintiff indicated that he

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would amend his Complaint to add claims, and filed a First Amended Complaint on February 6,

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2014. (Dkt. No. 13) The Court entered a Scheduling Order in this matter on January 28, 2014.

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(Dkt. No. 14).

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Since the filing of the Joint Scheduling Report, the parties engaged in settlement talks
and exchanged drafts of (i) a written term sheet then (ii) a proposed settlement agreement. The

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parties sought and the Court granted multiple extensions in an effort to seek resolution of the

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matter without further litigation. Most recently, in a stipulation dated May 12, 2014, the parties

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stated that they “are down to negotiating the language of the last few terms to the proposed

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settlement agreement.” (Dkt. No. 26) Unfortunately, the parties were unable to reach

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agreement.

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In light of these developments, as well as other considerations described below, the

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parties respectfully seek an order from this Court as follows.

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I.

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AMENDMENTS
On May 2, 2014, Plaintiff sent a 60-day notice of intent to sue to the Chief of the United

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States Forest Service and the Secretary of the Department of the Interior alleging violations of

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the Endangered Species Act. Plaintiff sent the notice of intent following the issuance of a final

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rule listing the Sierra Nevada yellow-legged frog as endangered on April 29, 2014. In light of

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the foregoing, Plaintiff anticipates, and Defendants stipulate to, the filing of a second amended

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complaint not later than July 11, 2014, pursuant to Fed. R. Civ. P. 15(a)(2).

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II.

UPCOMING MOTIONS

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A.

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Defendants anticipate filing a motion to dismiss. Rather than file with respect to the First

Motion to dismiss

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Amended Complaint, Defendants request, and Plaintiff stipulates to, an extension of time to file

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a responsive pleading to the anticipated Second Amended Complaint as follows:
2-13-cv-02315-GEB-AC - Murphy v USFS - Stipulation and Proposed Order re Briefing Schedule.doc
Case No. 2:13-cv-02315-GEB-AC

STIPULATION AND [PROPOSED] ORDER

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Defendants’ motion

July 21, 2014

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Plaintiff’s opposition

August 8, 2014

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Defendants’ reply

August 18, 2014

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Hearing date

August 25, 2014

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B.

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Plaintiff anticipates filing a motion for preliminary relief. Defendants ceased work on the

Motion for preliminary relief

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challenged project in November 2013 due to weather, and will not cut additional trees before

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September 1, 2014, as previously represented to this Court. (See Dkt. No. 26.) In order to allow

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the Court to decide the motion before Defendants plan to commence the second phase of the

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project and cut additional trees, Plaintiff and Defendants stipulate to the following schedule for

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Plaintiff’s motion for preliminary relief:

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Plaintiff’s motion

July 21, 2014

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Defendants’ opposition

August 8, 2014

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Plaintiff’s reply

August 18, 2014

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Hearing date

August 25, 2014

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III.

FURTHER STATUS REPORT
The parties propose vacating the motion hearing schedule set out in the Court’s prior

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Status Order (Dkt. No. 14) and, instead, filing a joint status report on October 1, 2014, regarding

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further proceedings, in the event the matter is not resolved as of that time. A status conference is

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scheduled for October 27, 2014, at 9:00 a.m.

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2-13-cv-02315-GEB-AC - Murphy v USFS - Stipulation and Proposed Order re Briefing Schedule.doc
Case No. 2:13-cv-02315-GEB-AC

STIPULATION AND [PROPOSED] ORDER

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Respectfully submitted,

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DATED: May 28, 2014

NOSSAMAN LLP

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By
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/s/ Paul S. Weiland
Attorney for Plaintiff

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BENJAMIN B. WAGNER
United States Attorney

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By:
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/s/ Gregory T. Broderick (as authorized on May 28, 2014)
GREGORY T. BRODERICK
Assistant United States Attorney

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IT IS SO ORDERED.

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DATED: MAY 28, 2014

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2-13-cv-02315-GEB-AC - Murphy v USFS - Stipulation and Proposed Order re Briefing Schedule.doc
Case No. 2:13-cv-02315-GEB-AC

STIPULATION AND [PROPOSED] ORDER

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