Our Children's Earth Foundation et al v. National Marine Fisheries Service et al

Filing 91

ORDER granting 90 MOTION for Extension of Time to File Response/Reply as to 82 MOTION for Attorney Fees and Costs. Response due by 6/1/2016. Reply due by 6/15/2016. Motion Hearing set for 6/29/2016 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Signed by Judge William H. Orrick on 05/24/2016. (jmdS, COURT STAFF) (Filed on 5/24/2016)

1 BRIAN J. STRETCH (CABN 163973)
United States Attorney
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SARA WINSLOW (DCBN 457643)
3 Chief, Civil Division
4 ROBIN M. WALL (CABN 235690)
Assistant United States Attorney
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450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
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Telephone: [phone]
Fax: [phone]
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[e-mail]
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Attorneys for Defendants
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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OUR CHILDREN’S EARTH FOUNDATION,
et al.,
Plaintiffs,

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v.
NATIONAL MARINE FISHERIES SERVICE,
et al.,

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Defendants.

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Case No. 14-cv-01130 WHO
Case No. 14-cv-04365 WHO
DEFENDANTS’ MOTION FOR EXTENSION
OF HEARING DATE AND BRIEFING
SCHEDULE ON PLAINTIFF’S MOTION FOR
FEES; DECLARATION OF ROBIN M. WALL;
[PROPOSED] ORDER

REQUEST FOR EXTENSION

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Pursuant to Local Civil Rule 6-3, defendants request a continuance of the hearing date on
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plaintiffs’ motion for attorney’s fees and costs and an extension of the briefing schedule for the motion.

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Because defendants’ opposition to the fee motion is currently due this Wednesday, May 25, 2016,
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defendants respectfully request expedited consideration of this scheduling motion.
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Defendants’ counsel has conferred with plaintiffs’ counsel, who has indicated that they are

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available for a hearing on June 29, 2016, or on or after September 7, 2016, but at no other times this
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summer. Because agency counsel for defendant National Marine Fisheries Service (“NMFS”) will not

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MOT. FOR EXTENSION OF HEARING DATE AND BRIEFING SCHEDULE
14-CV-01130, 14-CV-04365 WHO
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1 be available to help prepare for or attend a June 29 hearing, defendants request an extension to the
2 second date on which plaintiffs are available: September 7, 2016.
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Plaintiffs do not oppose continuing the hearing date to June 29, 2016, but they do oppose an

4 extension of the hearing date to September 7, 2016, or any extension of the briefing schedule.
BACKGROUND

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Defendants’ counsel is expected to be on parental leave beginning on or about June 3, 2016,

7 when his wife is expected to deliver a baby girl, through June 17, 2016. While there is obviously some
8 uncertainty regarding when the baby will arrive, defendant’s counsel will almost certainly be unable to
9 prepare for and attend the June 15, 2016, hearing date without unnecessary hardship. (Dkt. 82, Case No.
10 14-cv-01130-WHO.) (Declaration of Robin M. Wall (“Wall Decl.”) ¶ 3.) When the parties proposed
11 the existing schedule on the fee motion three months ago on March 23, 2016 (Dkt. 80), defendants’
12 counsel had not yet scheduled his parental leave and unfortunately did not recognize the potential
13 conflict. (Wall Decl. ¶ 4.)
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Last week, on May 19, 2016, defendants’ counsel informed plaintiffs’ counsel of the conflict and

15 requested a continuance of the hearing date as well as an extension of the briefing schedule. Plaintiffs’
16 counsel rejected the request. In order to try to accommodate plaintiffs’ concerns, defendants’ counsel
17 asked plaintiffs’ counsel to identify other hearing dates when they would be available. Plaintiffs
18 indicated that they would be available for a hearing only on June 29 or September 7, 2016, but at no
19 other times in between, and that they would oppose an extension of the hearing to September 7 or any
20 extension of the briefing schedule. (Wall Decl., ¶ 5, Ex. A.)
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GROUNDS FOR EXTENSION
Defendant believes that there is good cause for an extension of the hearing date to September 7,

23 2016, and an extension of the briefing schedule. While plaintiffs oppose this request, they have
24 indicated that they are available for a hearing on that date and do not have any scheduling conflicts with
25 the following briefing schedule, which plaintiffs’ counsel proposed: defendant’s opposition to be due on
26 August 3, 2016, and plaintiff’s reply to be due on August 26, 2016. (Wall Decl., ¶ 5, Ex. A.)
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If the continuance of the hearing date is not granted, defendant’s counsel will be unable to

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MOT. FOR EXTENSION OF HEARING DATE AND BRIEFING SCHEDULE
14-CV-01130, 14-CV-04365 WHO
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1 will not be available to care for his wife and newborn child. Unlike plaintiffs, who have been
2 represented by five (5) attorneys as reflected in their billing records, defendant National Marine
3 Fisheries Service (“NMFS”) has been represented by only one attorney in the U.S. Attorney’s Office for
4 the Northern District of California with the assistance of agency counsel. Forcing defendant’s counsel
5 to cut short his parental leave to prepare for and attend the hearing on a motion for attorney’s fees would
6 inflict an avoidable and entirely unnecessary hardship.
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If the extension of the briefing schedule is not granted, defendant will also be prejudiced.

8 Plaintiffs seek approximately $650,000 in fees and costs. Plaintiffs’ billing records reflect that
9 plaintiffs’ five attorneys have billed more than 150 hours to date on fee issues and their motion, which is
10 an extraordinary (and unreasonable) amount of time. (See Dkt. 84-87.) Given the unprecedented size of
11 the requested fee award and the amount of time that plaintiffs have spent pursuing fees, defendant
12 NMFS requires additional time to prepare its opposition to the motion. The proposed schedule set forth
13 in the proposed order filed herewith provides both parties with additional time for briefing in advance of
14 the new proposed hearing date.
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If the Court decides not to grant an extension of the hearing to September 7, 2016, defendant

16 respectfully requests that the Court extend the hearing to June 29, 2016, and give each of the parties one
17 additional week to file their opposition and reply briefs. Defendants do not request a longer extension of
18 the briefing schedule, only because it would place defendants’ opposition due date after the expected
19 birth of counsel’s child and during his two-week parental leave. Plaintiffs oppose this one-week
20 extension. (Wall Decl. ¶ 6.)
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The requested extension to September 7, 2016, will not have any impact on the schedule in the

22 case. The Court has previously granted extensions in this case, including to the due date for plaintiffs’
23 fee motion. (E.g., Dkt. 77, 81.)
24 Dated: May 23, 2016

BRIAN J. STRETCH
United States Attorney

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/s/ Robin M. Wall
ROBIN M. WALL
Assistant United States Attorney
Attorney for Defendants
MOT. FOR EXTENSION OF HEARING DATE AND BRIEFING SCHEDULE
14-CV-01130, 14-CV-04365 WHO
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[PROPOSED] ORDER

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On good cause shown, the briefing schedule and hearing date on plaintiffs’ motion for fees and
costs is extended as follows:
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Defendant’s opposition to the motion is due June 1, 2016;

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Plaintiff’s reply is due June 15, 2016; and

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The hearing on the motion will take place on June 29, 2016, at 2 p.m.

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IT IS SO ORDERED.

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Dated: May 24, 2016
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WILLIAM H. ORRICK
U.S. District Judge

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MOT. FOR EXTENSION OF HEARING DATE AND BRIEFING SCHEDULE
14-CV-01130, 14-CV-04365 WHO
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