Anderson v. USDA et al.

Filing 60

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/4/2016 GRANTING United States' 59 Motion for Extension. It is ORDERED that the United States' reply to plaintiff's amended opposition to the Motion for Summary Judgment be filed on 10/13/2016. Hearing on the Motion is CONTINUED to 10/26/2016 at 10:00 AM in Courtroom 24 (CKD) before Magistrate Judge Carolyn K. Delaney. (Jackson, T)

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PHILLIP A. TALBERT
Acting United States Attorney
ALYSON A. BERG
Assistant United States Attorney
2500 Tulare Street, Suite 4401
Fresno, California 93721
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant UNITED STATES

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EZELL ANDERSON, JR., Doing Business As, )
Mom’s Choice Meats,
) Case No. 2:14-cv-02307 JAM/CKD
)
Plaintiff,
) EX PARTE REQUEST TO EXTEND
) DEADLINE FOR FILING REPLY TO
v.
) OPPOSITION TO MOTION FOR
) SUMMARY JUDGMENT; ORDER
UNITED STATES OF AMERICA; KEVIN
)
CONCANNON, Undersecretary for Food,
)
Nutrition and Consumer Services; UNITED
)
STATES DEPARTMENT OF
)
AGRICULTURE; JOCELYN KEH, Section
)
Chief, Supplemental Nutrition Assistance
)
Program, Food and Nutrition Service, United )
States Department of Agriculture, and their
)
successors in office, ,
)
)
Defendants.
)
)
The United States requests a brief extension of time to file its reply to Plaintiff, Ezell

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Anderson, Jr’s Amended Opposition to the United States’ Motion for Summary Judgment from

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October 5, 2016, to and including October 13, 2016.1 Good cause exists for this short extension

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because service of the Amended Opposition was made by regular mail on Thursday, September 29,

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2016, and as of the date of this filling, counsel for the United States is not in receipt of the exhibits to

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the Amended Opposition, specifically a DVD referenced by Plaintiff as Exhibit B(1), “NSDAA

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Conference USDA OIG.” (ECF No. 58 at 9-10). To provide a comprehensive Reply, the United

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ECF Nos. 54, 58.

EX PARTE REQUEST TO EXTEND DEADLINE FOR FILING
REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT;
[PROPOSED] ORDER

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States counsel requests the opportunity to review the DVD as it was not produced in discovery, and it

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is unclear what information is contained on the DVD.

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The United States’ request for an approximate one-week extension of the Reply deadline is
based on the following:
1.

The United States filed its Motion for Summary Judgment on August 19, 2016, with a

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hearing date of September 21, 2016. (ECF No. 51-1). Plaintiff’s opposition was due on September

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7, 2016. No opposition was timely filed by Plaintiff.

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2.

Per Order dated September 9, 2016, this Court noted that Plaintiff did not timely

oppose the United States’ Motion for Summary Judgment, but allowed Plaintiff an additional three
weeks, to and including September 28, 2016, to file an opposition. (ECF No. 54).
3.

On September 29, 2016, counsel for the United States was informed by way of ECF

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that an opposition to the United States’ Motion for Summary Judgment had been filed. (ECF No.

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57). This filing was eight pages, and did not include any exhibits referenced in the opposition. Most

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significantly, no proof of service on counsel for the United States was provided in the opposition.

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4.

On September 30, 2016, counsel for the United States was informed via ECF of an

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Amended Opposition to the United States’ Motion for Summary Judgment. (ECF No. 58). This

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filing was thirty pages, and included a proof of service by regular mail dated September 29, 2016.

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(ECF No. 58 at 9).

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5.

The Amended Opposition filed at ECF No. 58 included twenty pages of exhibits, and

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in particular, Exhibit B(1) was a single piece of paper representing a photocopy of a DVD with the

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handwritten notation, “NDSAA Conference USDA OIG.” (ECF No. 58 at 10). The Amended

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Opposition states in paragraph 11 that “Exhibit “B(1)” describe[sic] the same circumstances as found

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in this present matter concerning Mom’s Choice, but in the instance of Exhibit “B(1)” the USDA

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stayed within the rules to invoke trafficking against the owner.” (ECF No. 58 at 4, ¶ 11).

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6.

The DVD referenced as Exhibit B(1) was not produced in discovery, which closed in

this case on July 22, 2016. (ECF Nos. 46, 48) .

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EX PARTE REQUEST TO EXTEND DEADLINE FOR FILING
REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT;
[PROPOSED] ORDER

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7.

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The DVD referenced as Exhibit B(1) was not mentioned at Plaintiff’s deposition on

May 17, 2016.
8.

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As of the time of the filing of this Ex Parte request, counsel for the United States is not

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in receipt of a paper version of the Opposition referenced as ECF No. 57, nor the Amended

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Opposition with the exhibits referenced as ECF No. 58.
9.

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The United States is prejudiced by plaintiff’s serving the exhibits referenced in the

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Amended Opposition, namely the DVD referenced as Exhibit B(1), by regular mail on Thursday,

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September 29, 2016. Not only was Plaintiff a day late in filing the Opposition (ECF No. 57), the

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Amended Opposition was only received via ECF on Friday, September 30, 2016, which shortens the

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United States’ time to file its reply from five business days to, at best, two business days.2
10.

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Accordingly, the United States respectfully requests that the deadline for filing its

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reply be extended from October 5, 2016 to October 13, 2016.3

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Dated: September 30, 2016

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Respectfully submitted,
PHILLIP A. TALBERT
ACTING UNITED STATES ATTORNEY

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/s/Alyson A. Berg
ALYSON A. BERG
Attorney for Defendant United States

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This assumes the DVD is received on Monday, October 3, 2016.

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Monday, October 10, 2016, is a federal holiday.

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EX PARTE REQUEST TO EXTEND DEADLINE FOR FILING
REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT;
[PROPOSED] ORDER

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ORDER

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Having reviewed the ex parte request by the United States, and for good cause showing, it is

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ordered that the United States’ reply to plaintiff’s amended opposition to the Motion for Summary

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Judgment be filed on October 13, 2016. Hearing on the motion is continued to October 26, 2016 at

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10:00 a.m. in courtroom no. 24.

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Dated: October 4, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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EX PARTE REQUEST TO EXTEND DEADLINE FOR FILING
REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT;
[PROPOSED] ORDER

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