Pharmaceutical Research and Manufacturers of America v. Brown et al

Filing 26

ORDER signed by District Judge Morrison C. England, Jr on 4/4/2018 GRANTING 25 Application for Leave to File Sur-Reply. (Washington, S)

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DOWNEY BRAND LLP

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DOWNEY BRAND LLP
ANNIE S. AMARAL (Bar No. 238189)
AVALON J. FITZGERALD (Bar No. 288167)
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone: [phone]
Facsimile: 916.444.2100
[e-mail]
[e-mail]
Robert N. Weiner
Admitted Pro Hac Vice
Jeffrey L. Handwerker
Admitted Pro Hac Vice
R. Stanton Jones
Admitted Pro Hac Vice
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, NW
Washington, DC 20001
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff Pharmaceutical Research and
Manufacturers of America

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHARMACEUTICAL RESEARCH AND
MANUFACTURERS OF AMERICA,
Plaintiff,

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PLAINTIFF’S APPLICATION FOR
LEAVE TO FILE SUR-REPLY

v.

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Case No.: 2:17-cv-02573-MCE-KJN

EDMUND GERALD BROWN, Jr., in his
capacity as Governor of the State of
California, and
ROBERT P. DAVID, in his official
capacity as Director of the California
Office of Statewide Health Planning and
Development,

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Defendants.

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1514631.3

APPLICATION FOR LEAVE TO FILE SUR-REPLY

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On March 26, 2018, the State filed its reply brief in support of its Motion to Dismiss

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PhRMA’s Complaint. (ECF No. 24.) The State’s reply brief misconstrues central allegations in

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the Complaint in a manner that is material to the Court’s assessment of PhRMA’s claim under the

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Dormant Commerce Clause. Because the Court submitted this motion on the briefs on January

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29, 2018, (ECF No. 20), PhRMA will not have the opportunity to correct these errors for the

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Court at oral argument. PhRMA therefore respectfully requests this Court’s leave to submit a

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short, targeted sur-reply for the limited purpose of clarifying these critical issues. PhRMA’s

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proposed sur-reply is attached hereto as Exhibit A.

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PhRMA is cognizant of the fact that sur-replies are not typical of this Court’s practice, and
is sensitive to the Court’s heavy caseload. Accordingly, PhRMA’s proposed sur-reply focuses

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only on clarifying issues that are absolutely essential to this Court’s resolution of the motion to

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DOWNEY BRAND LLP

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dismiss, and is limited to three pages. For the reasons described, good cause exists for PhRMA to

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file the attached sur-reply. To the extent the Court is not inclined to grant PhRMA’s request for

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leave to file a sur-reply, PhRMA respectfully requests that the Court re-set this matter for oral

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argument so that these mischaracterizations can be addressed.

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PhRMA’s counsel attempted to contact counsel for the State on April 2, 2018, to

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determine whether the State opposes PhRMA’s application for leave to file a sur-reply, but did

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not receive a response before the close of business that day.

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1514631.3

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APPLICATION FOR LEAVE TO FILE SUR-REPLY

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DATED: April 2, 2018

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/s/ Annie S. Amaral
Annie S. Amaral
Avalon J. Fitzgerald
DOWNEY BRAND LLP
/s/ Robert N. Weiner (as authorized on 4/2/2018)
Robert N. Weiner
Jeffrey L. Handwerker
R. Stanton Jones
ARNOLD & PORTER KAYE SCHOLER LLP

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Attorneys for Plaintiff Pharmaceutical Research
and Manufacturers of America

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DOWNEY BRAND LLP

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1514631.3

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APPLICATION FOR LEAVE TO FILE SUR-REPLY

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ORDER
Good cause appearing, Plaintiff PhRMA is granted leave to file the sur-reply attached as

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Exhibit A to Plaintiff’s Application for Leave to File Sur-Reply.
IT IS SO ORDERED.

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Dated: April 4, 2018

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DOWNEY BRAND LLP

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1514631.3

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APPLICATION FOR LEAVE TO FILE SUR-REPLY