The Sierra Club et al v. United States Environmental Protection Agency

Filing 42

ORDER by Magistrate Judge Marie-Elena James granting 41 Motion for Extension of Time to File Response/Reply re 41 Joint MOTION for Extension of Time to File Response/Reply as to 32 Cross MOTION for Summary Judgment and in opposition to motion for judgment on the pleadings that; declaration of counsel; proposed order Replies due by 5/4/2012. (rmm2, COURT STAFF) (Filed on 5/1/2012)

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David A. Bahr (Oregon Bar No. 90199)
Bahr Law Offices, P.C.
1035 ½ Monroe Street
Eugene, OR 97402
[phone]
[e-mail]

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Kristin Henry (California Bar. No. 220908)
Sierra Club Environmental Law Program
85 Second St., 2nd Floor
San Francisco, CA 94105
[phone]
[e-mail]

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Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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Case No. C-11-0846-MEJ

THE SIERRA CLUB and ENVIRONMENTAL
14 INTEGRITY PROJECT,

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JOINT MOTION TO EXTEND THE
SUMMARY JUDGMENT REPLY BRIEF
DEADLINE; DECLARATION OF
COUNSEL; [PROPOSED] ORDER

Plaintiffs,

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vs.

17 UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
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Defendant.
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Pursuant to this Court’s Order granting Plaintiffs’ Unopposed Motion To Extend The Summary
Judgment Reply Brief Deadline, Dkt. 40, Plaintiffs’ summary judgment reply brief is due today, May 1,

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2012. Pursuant to Federal Rule of Civil Procedure 6(b), all Parties now move for a modest enlargement

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of time until Friday, May 4, 2012, in which Plaintiffs are to file their summary judgment reply brief.

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This motion is supported by the Declaration of Counsel incorporated into this document. Infra.

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A district court's decision regarding an extension of time lies well within its discretion. United
States ex rel. Hawaiian Rock Prods. Corp. v. A.E. Lopez Enters., 74 F.3d 972, 976 (9th Cir.1996) (estab-

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JOINT MOTION TO EXTEND THE SUMMARY
JUDGMENT REPLY BRIEF DEADLINE; DECLARATION OF COUNSEL; [PROPOSED] ORDER

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BAHR LAW OFFICES, P.C.
1035 ½ Monroe Street
Eugene, OR 97402
[phone]

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lishing that such a decision will not be disturbed absent an abuse of discretion).
For the following reasons, the all Parties assert good cause exists to grant this request for an enlargement of time.
1. By email with a date/time stamp of 10:04 am, May 1, 2012, Plaintiffs’ counsel David
Bahr, received notice from plaintiff Sierra Club, that it had received a large volume of

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records released by EPA in response to the FOIA request that is the subject of this

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suit.

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2. Plaintiffs’ counsel had been entirely unaware that this release was pending.
3. In a telephone conversation with Mr. Bahr, EPA’s trial counsel, Abraham Simmons,
stated that he was similarly unaware that this release was pending.
4. Based on counsels’ initial review of the EPA’s cover letter and a declaration of a Lu-

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minant employee, it appears that this release constitutes 183 pdf files totaling ap-

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proximately 6,000 pages of material.

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5. Based on counsels’ initial review of the EPA’s cover letter and a declaration of a
Luminant employee, it appears that the information in at least some of these documents is responsive to claims and defenses asserted by the Parties in this case.

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6. The Parties require a brief period to evaluate the contents of the recently released re-

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cords and Plaintiffs require time in which to evaluate their relevance to arguments to

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be presented in their summary judgment reply.

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7. This request will not unreasonably delay final disposition of this case. The summary
judgment argument date was recently continued by a week until May 17, 2012. Dkt. #
38.

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8. No party will be disadvantaged by this enlargement of time. If this motion is granted,
with the recent continuance of the argument date, the parties and the Court will actu2
JOINT MOTION TO EXTEND THE SUMMARY
BAHR LAW OFFICES, P.C.
JUDGMENT REPLY BRIEF DEADLINE; DECLARATION OF COUNSEL; [PROPOSED] ORDER

1035 ½ Monroe Street
Eugene, OR 97402
[phone]

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ally have same amount of time between the filing of the reply brief and the hearing as

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under the schedule previously approved by the Court, dkt. # 31, (13 days).

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9. This is the Parties’ first joint request for an enlargement of time in which to brief

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summary judgment in this case.

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10.

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WHEREFORE, the Parties respectfully request the Court to enlarge Plaintiffs’ time to file their

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summary judgment reply brief until May 4, 2012.

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Respectfully submitted for the Court’s consideration, this 1st day of May, 2012.

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__s/ David Bahr__________________
David Bahr (Oregon Bar No. 901990)
Bahr Law Offices, P.C.
1035 ½ Monroe Street
Eugene, OR 97402
[phone]
[e-mail]

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___s/ Abraham A. Simmons________
ABRAHAM A. SIMMONS
Assistant United States Attorney
Attorney for the Federal Defendants
450 Golden Gate Avenue, 9th Floor
San Francisco, California 94102-3495
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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____________________________________________________

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DECLARATION OF COUNSEL

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This request for enlargement is made in good faith and for no improper purpose.

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My name is David Bahr. I am Plaintiffs’ lead counsel in this case. This declaration is based on

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my personal knowledge and experience.

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2.

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erra Club, that it had received a large volume of records released by EPA in response to the FOIA re-

By email with a date/time stamp of 10:04 am, May 1, 2012, I received notice from plaintiff Si-

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JOINT MOTION TO EXTEND THE SUMMARY
JUDGMENT REPLY BRIEF DEADLINE; DECLARATION OF COUNSEL; [PROPOSED] ORDER

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BAHR LAW OFFICES, P.C.
1035 ½ Monroe Street
Eugene, OR 97402
[phone]

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quest that is the subject of this suit.

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I had been entirely unaware that this release was pending.

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In a telephone conversation with me, EPA’s counsel trial counsel, Abraham Simmons, stated that

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he was similarly unaware that this release was pending.

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5.

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ployee, it appears that this release constitutes 183 pdf files totaling approximately 6,000 pages of mate-

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rial.

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6.

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Based on counsels’ initial review of the EPA’s cover letter and a declaration of a Luminant em-

Based on counsels’ initial review of the EPA’s cover letter and a declaration of a Luminant em-

ployee, it appears that the information in at least some of these documents is responsive to claims and
defenses asserted by the Parties in this case.
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The Parties require a brief period to evaluate the contents of the recently released records and

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Plaintiffs require time in which to evaluate their relevance to arguments to be presented in their sum-

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mary judgment reply.

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8.

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This is the Parties’ first joint request for an enlargement of time in which to brief sum-

mary judgment in this case.
9.

This request for enlargement is made in good faith and for no improper purpose.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct.
Executed this 1st day of May, 2012, in Eugene, Oregon.
__s/ David Bahr__________________
David Bahr (Oregon Bar No. 901990)
Bahr Law Offices, P.C.
1035 ½ Monroe Street
Eugene, OR 97402
[phone]
[e-mail]

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[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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[PROPOSED] ORDER

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This Court, having considered the Parties’ Joint Motion To Extend The Summary Judgment Re-

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ply Brief Deadline, and after considering the moving papers, arguments of counsel, and all other matters

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presented to the Court, HEREBY FINDS AND ORDERS THAT:

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Plaintiffs’ summary judgment reply brief shall be due no later than May 4, 2012., by Noon.

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1st
IT IS SO ORDERED, this _____ day of May, 2012.

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______________________________________
MARIA-ELENA JAMES
Chief United States Magistrate Judge

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Presented by:
__s/ David Bahr__________________
David Bahr (Oregon Bar No. 901990)
Plaintiffs’ counsel
__s/ Abraham A. Simmons_________
ABRAHAM A. SIMMONS
Assistant United States Attorney
Attorney for the Federal Defendants

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[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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