Center for Food Safety et al v. Vilsack et al

Filing 156

ORDER by Judge Samuel Conti The Court DENIES Plaintiffs' Motion to Shorten Time 149 and considers Plaintiffs' Motion to Complete the Administrative Record 147 WITHDRAWN. The summary judgment briefing schedule will continue as scheduled. (sclc1, COURT STAFF) (Filed on 10/24/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CENTER FOR FOOD SAFETY, et al.

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Plaintiffs,

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) Case No. 11-1310-SC
)
) ORDER DENYING PLAINTIFFS'
) MOTION TO SHORTEN TIME
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v.

United States District Court

For the Northern District of California

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THOMAS J. VILSACK, et al.,
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Defendants.

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I.

INTRODUCTION

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On October 13, 2011, Plaintiffs Center For Safety, et al.

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("Plaintiffs") filed a Motion to Complete the Administrative Record

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as well as a Motion to Shorten Time to expedite the hearing on the

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Motion to Complete the Administrative Record.

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to Complete Admin. R."), 149 ("Mot. to Shorten Time").

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to Shorten Time is fully briefed.

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Opp'n"),1 154 ("Defs.' Opp'n"), 155 ("Reply").

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to file an opposition to the Motion to Complete the Administrative

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Record.

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Plaintiffs' Motion to Shorten Time.

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the Administrative Record is considered WITHDRAWN.

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///

ECF Nos. 147 ("Mot.
The Motion

ECF Nos. 152 ("Monsanto
Defendants have yet

For the reasons set forth below, the Court DENIES
Plaintiffs' Motion to Complete

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Monsanto Company ("Monsanto") has intervened as a defendant in
this action.

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II.

BACKGROUND
Plaintiffs filed this case against Defendants Thomas J.

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Vilsack, et al. ("Defendants"), challenging the decision by the

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United States Animal and Plant Health Inspection Service ("APHIS"),

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to unconditionally deregulate genetically engineered "Roundup

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Ready" alfafa ("RRA").

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claims arise under the Administrative Procedures Act ("APA"), 7

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U.S.C. § 7701 et seq., the Court ordered Defendants to file an

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Administrative Record by August 15, 2011.

ECF No. 13 ("FAC").

As some of Plaintiffs'

ECF No. 78 ("June 30,

United States District Court

For the Northern District of California

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2011 Order").

The Court set a consolidated briefing schedule for

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cross motions for summary judgment whereby motions were to be filed

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by September 22, 2011 and oppositions by October 24, 2011.2

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cross motions are set for hearing on December 2, 2011.

The

On August 14, 2011, Defendants lodged the Administrative

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Record with the Court and sent copies to Plaintiffs.

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("Not. of Admin. R.").

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problems with their production as they recalled and resubmitted the

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Administrative Record at least three times over the course of the

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next month.

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produced a final, Revised Administrative Record on September 14,

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2011.

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state that Defendants also produced a 500 page index of all

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documents in the Revised Administrative Record with claims of

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privilege scattered throughout.

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Defendants apparently experienced numerous

Mot. to Shorten Time at 3, n.1.

Defendants eventually

ECF No. 102 ("Not. of Rev. Admin Record.").

Plaintiffs

On September 22, 2011, Plaintiffs, Defendants, and Monsanto

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ECF No. 92

filed cross motions for summary judgment.
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ECF Nos. 103 ("Defs.'

Motions and oppositions were originally due on September 14, 2011
and October 14, 2011, respectively. June 30, 2011 Order. However
the parties stipulated to changes in time. ECF Nos. 100
("September 13, 2011 Order"), 151 ("October 14, 2011 Order").
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MSJ"), 104 ("Monsanto MSJ"), 106 ("Pls.' MSJ").

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2011, one week before the deadline for filing oppositions to the

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motions for summary judgment, Plaintiffs filed a Motion to Complete

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the Administrative Record, noticed for hearing on November 18,

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2011.

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withheld nearly a third of the Administrative Record based on the

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improper assertion of the deliberative process and attorney-client

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privileges.

Mot. to Complete Admin. R.

On October 13,

Plaintiffs argue that Defendants

Id. at 2.

United States District Court

Also on October 13, 2011, Plaintiffs filed their Motion to

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For the Northern District of California

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Shorten Time, asking the Court to hear their Motion to Complete the

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Administrative Record on October 28, 2011, or at its earliest

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possible convenience.

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Plaintiffs asked that the summary judgment briefing continue as

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scheduled, with a single round of optional supplemental briefing

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following resolution of the dispute concerning the Administrative

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Record.

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the Court be inclined to stay ongoing briefing and argument on

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cross motions for summary judgment, pursuant to Civil Local Rule 7-

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7, Plaintiffs respectfully withdraw the Motion to Complete the

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Administrative Record."

Id. at 1.

Mot. to Shorten Time at 1.

Alternatively,

In their Reply, Plaintiffs stated that, "should

Reply at 5.

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III. DISCUSSION
"The district court is given broad discretion in supervising

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the pretrial phase of litigation."

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)).

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Civil Local Rule 37-1 provides that "[t]he Court will not entertain

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a request or a motion to resolve a disclosure or discovery dispute

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Zivkovic v. Southern California

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unless, pursuant to Fed. R. Civ. P. 37, counsel have previously

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conferred for the purpose of attempting to resolve all disputed

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issues."

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time must be accompanied by a declaration that, among other things,

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identifies the harm or prejudice that would occur if the Court did

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not change the time and describes the moving party's compliance

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with Civil Local Rule 37-1(a).

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Civil Local Rule 6-3 provides that a motion to shorten

Civ. L.R. 6-3.

In the instant action, Plaintiffs filed a Motion to Complete
the Administrative Record and a Motion to Shorten Time to expedite

United States District Court

For the Northern District of California

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the resolution of their Motion to Complete the Administrative

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Record.

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to avoid erroneously denying Plaintiffs data and information

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supporting their arguments for summary judgment.

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Time at 1.

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willing to withdraw their Motion to Complete the Administrative

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Record if it will delay resolution of the pending cross motions for

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summary judgment.

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Plaintiffs met and conferred with Defendants prior to filing their

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Motion to Complete the Record.

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not required since this matter does not constitute a discovery

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dispute under Civil Local Rule 37-1.

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Plaintiffs contend that expedited resolution is required

Mot. to Shorten

However, Plaintiffs have also indicated that they are

Reply at 5.

There is no indication that

Plaintiffs argue such efforts are

Id. at 2-3.

Defendants disagree with Plaintiffs' contention that the

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Motion to Complete the Administrative Record does not involve a

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disclosure or discovery dispute, pointing out that Plaintiffs have

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challenged Defendants' privilege designations and effectively seek

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to compel the production of documents.

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Defendants also argue that Plaintiffs have not justified their

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expedited briefing schedule as they were capable of challenging

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Defs.' Opp'n at 2.

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Defendants' privilege designations before they brought their Motion

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to Complete the Administrative Record.

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concede that they revised the Administrative Record several times

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due to inadvertent errors, they argue that Plaintiffs have had the

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bulk of the record in word searchable format since August 15, 2011.

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Id.

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filed after the parties submitted their motions for summary

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judgment based on the current Administrative Record and one week

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prior to the deadline for oppositions.

Id. at 3.

While Defendants

Further, Defendants complain that Plaintiffs' motions were

Id. at 4.

United States District Court

For the Northern District of California

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The Court finds that because the current dispute involves

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"disclosure or discovery matters," i.e., the assertion of privilege

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and the production of documents, Plaintiffs should have met and

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conferred with Defendants prior to submitting their Motion to

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Complete the Administrative Record and their Motion to Shorten

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Time.

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Accordingly, Plaintiffs' Motion to Shorten Time is DENIED.
The Court would be inclined to (1) grant Plaintiffs' leave to

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meet and confer with Defendants concerning the dispute over the

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Administrative Record and re-file their Motion to Complete the

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Administrative Record if these meet and confer efforts proved

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unsuccessful, and (2) stay the cross motions for summary judgment

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pending the resolution of the dispute over the Administrative

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Record.

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of the pending summary judgment motions is paramount and that,

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"should the Court be inclined to stay ongoing briefing and

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argument, pursuant to Civil Local Rule 7-7, Plaintiffs respectfully

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withdraw the Motion to withdraw the Motion to Complete the

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Administrative Record."

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"[w]ithin 7 days after service of an opposition, the moving party

However, Plaintiffs have indicated that speedy resolution

Reply at 5.

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Civil Local Rule 7-7 provides

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may file and serve a notice of withdrawal of the motion.

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filing of a timely withdrawal, the motion will be taken off-

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calendar."

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opposition to the Motion to Complete the Administrative Record,

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withdrawal is proper.

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Motion to Complete the Administrative Record withdrawn.

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summary judgment briefing schedule will continue as scheduled.

Civ. L.R. 7-7(e).

Upon the

As Defendants have yet to file an

Accordingly, the Court considers Plaintiffs'
The

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IV.

CONCLUSION

United States District Court

For the Northern District of California

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The Court DENIES Plaintiffs' Motion to Shorten Time and

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considers Plaintiffs' Motion to Complete the Administrative Record

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WITHDRAWN.

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IT IS SO ORDERED.

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Dated: October 24, 2011
UNITED STATES DISTRICT JUDGE

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