Institute for Fisheries Resources et al v. Burwell et al

Filing 155

STIPULATION AND ORDER re 145 MOTION for Judgment on the Pleadings filed by Thomas E. Price, Robert M Califf, United States Food and Drug Administration, Sylvia Mathews Burwell. Plaintiffs' Opp/Cross-Motion for Judgment on Pleadings d ue by 10/26/2018. Defendants' Reply/Opp to Pls. Cross-Motion for Judgment on the Pleadings due by 12/17/2018. Plaintiffs' Reply in Support of its Cross-Motion for Judgment on the Pleadings due by 1/14/2019. Signed by Judge Vince Chhabria on October 4, 2018. (wsn, COURT STAFF) (Filed on 10/4/2018)

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George Kimbrell (Pro Hac Vice)
Amy van Saun (Pro Hac Vice)
Center for Food Safety
917 SW Oak Street, Suite 300
Portland, OR 97205
T: [phone] / F: [phone]
Emails: [e-mail]
[e-mail]
Stephen D. Mashuda (Pro Hac Vice)
Earthjustice
705 Second Avenue, Suite 203
Seattle, WA 98104
T: [phone] / F: [phone]
Email: [e-mail]
Brettny Hardy (Pro Hac Vice)
Earthjustice
50 California St, Suite 500
San Francisco, CA 94111
T: [phone]
Email: [e-mail]
Counsel for Plaintiffs

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THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
INSTITUTE FOR FISHERIES RESOURCES, et al., )
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Plaintiffs,
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v.
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ALEX M. AZAR II, et al.,
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Defendants,
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and
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AQUABOUNTY TECHNOLOGIES, INC.,
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Intervenor-Defendants.
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)

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CASE NO. 3:16-cv-01574-VC
STIPULATION TO ENLARGE TIME

Case No. 3:16-cv-01574-VC

STIPULATION TO ENLARGE
TIME TO RESPOND TO
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
AND PROPOSED SCHEDULING
ORDER

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STIPULATION TO ENLARGE TIME

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Pursuant to Civil L.R. 6-2, the Parties respectfully request the Court extend the deadline

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for Plaintiffs’ response to Federal Defendants’ motion for judgment on the pleadings, ECF No.

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145, and to enter a briefing schedule for the parties’ remaining responses, including Plaintiffs’

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response (including a cross-motion), Defendants’ reply and opposition to a cross-motion, and

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Plaintiffs’ final reply.

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1.

On August 27, 2018, Federal Defendants made their final production of

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documents pursuant to the Court’s January 10 Order. In accordance with the Amended Protective

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Order, ECF No. 140, Federal Defendants provided most documents unredacted, holding any

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claims of deliberative process privilege to be determined once Plaintiffs identify which

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documents they intend to use in summary judgment briefing. However, Federal Defendants

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withheld under claims of deliberative process privilege thirty-two unique interagency documents,

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and are currently in the process of reaching out to those agencies to determine whether they will

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agree to the production of those documents in unredacted form pursuant to the Amended

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Protective Order. Plaintiffs have yet to receive those documents, but Federal Defendants estimate

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they will be produced by the end of this week, or October 5.

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2.

On August 30, 2018, Federal Defendants moved for judgment on the pleadings as

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to four of Plaintiffs’ claims, ECF No. 145. On the same day, the parties moved jointly for an

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extension of time for Plaintiffs to respond, as had been negotiated by the parties prior to the

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filing of the motion. ECF No. 146. The parties requested, and the Court granted, an extension for

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Plaintiffs’ response until October 5, with Defendants’ reply due October 22. ECF No. 149.

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3.

On September 13, 2018, Magistrate Corley held a status conference regarding the

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administrative record, holding the deadline for the filing of the final administrative record in

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abeyance pending the resolution of the deliberative process privilege issues. ECF No. 152. On

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September 27, 2018 the parties again appeared before Magistrate Corley to discuss the remaining

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issues for completing the record. Federal Defendants are still working to resolve the interagency

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confidential document processes and produce documents to Plaintiffs, to complete their

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production of the administrative record.
CASE NO. 3:16-cv-01574-VC
STIPULATION TO ENLARGE TIME

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4.

Plaintiffs are currently working to review the documents produced at the end of

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August, and are waiting to review the several withheld interagency documents once they are

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produced. Pursuant to the Amended Protective Order, Plaintiffs must identify for Defendants

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certain documents designated as Confidential Information they wish to rely upon in their

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briefing, and provide fourteen days notice in advance of the intended use. ECF No. 140 at ¶ 14.

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Accordingly, Plaintiffs seek to build in time to both finish reviewing the record documents and to

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provide for the fourteen days notice to Defendants of any intended use of documents designated

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as Confidential, pursuant to the Protective Order.

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5.

In conjunction with their opposition to Federal Defendants’ motion for judgment

on the pleadings, Plaintiffs intend to file a cross-motion.
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The parties have met and conferred regarding a schedule for the remaining

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briefing on the pending motion for judgment on the pleadings and accordingly propose the

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following deadlines to complete briefing on the pending motion:

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Oct. 26

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Dec. 17

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Jan. 14

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Plaintiffs’ Opp/Cross-Motion for
Judgment on Pleadings
Defendants’ Reply/Opp to Pls. CrossMotion for Judgment on the Pleadings
Plaintiffs’ Reply in Support of its
Cross-Motion for Judgment on the
Pleadings

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7.

Plaintiffs are still completing review of the administrative record at the same time

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as the Motion for Judgment on the Pleadings briefing. Accordingly Plaintiffs will be filing a

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cross-motion, but based on their review of the record, and the privileged document processes

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described above, are unsure at this time whether that motion will be a cross-motion for judgment

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on the pleadings or a cross-motion for summary judgment on the specific claims at issue. In the

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event Plaintiffs file a cross-motion for summary judgment instead on those claims, the Parties

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agree to re-consider the above schedule and submit a new scheduling proposal to the Court.

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Respectfully submitted this 3rd day of October, 2018 in Portland, Oregon.
CASE NO. 3:16-cv-01574-VC
STIPULATION TO ENLARGE TIME

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/s/ George Kimbrell
George Kimbrell (Pro Hac Vice)
Amy van Saun (Pro Hac Vice)
Center for Food Safety
917 SW Oak Street, Suite 300
Portland, OR 97205
T: [phone] / F: [phone]
Emails: [e-mail]
[e-mail]

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Stephen D. Mashuda (Pro Hac Vice)
Earthjustice
705 Second Avenue, Suite 203
Seattle, WA 98104
T: [phone] / F: [phone]
Email: [e-mail]

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Brettny Hardy (Pro Hac Vice)
Earthjustice
50 California St, Suite 500
San Francisco, CA 94111
T: [phone]
Email: [e-mail]

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Counsel for Plaintiffs

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JOSEPH H. HUNT
Assistant Attorney General

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/s/ Mary M. Englehart
MARY M. ENGLEHART
Trial Attorney, Maryland Bar
Consumer Protection Branch
United States Department of Justice
450 Fifth St., N.W., Suite 6400 South
Washington, D.C. 20530
T: [phone] / F: [phone]
Email: [e-mail]

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JEFFREY H. WOOD
Acting Assistant Attorney General

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Marissa A. Piropato
Trial Attorney, Massachusetts Bar #651630
Frederick H. Turner
Trial Attorney
United States Department of Justice
Environment & Natural Resources Division

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CASE NO. 3:16-cv-01574-VC
STIPULATION TO ENLARGE TIME

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Benjamin Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
T: [phone] / F: [phone] (Piropato)
T: [phone] / F: [phone] (Turner)
Email: [e-mail]
Email: [e-mail]

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Attorneys for Federal Defendants
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/s/ Karen E. Carr
KAREN ELLIS CARR
ARENT FOX LLP
Stanley H. Abramson (DC Bar 217281) (Pro Hac
Vice)
Donald C. McLean (DC Bar 412268) (Pro Hac
Vice)
Karen Ellis Carr (DC Bar 975480) (Pro Hac Vice)
1717 K Street, NW
Washington, D.C. 20006-5344
T: [phone] / F: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Intervenor-Defendant AquaBounty
Technologies, Inc.

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CASE NO. 3:16-cv-01574-VC
STIPULATION TO ENLARGE TIME

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ATTESTATION

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Pursuant to Local Rule 5-1(i)(3), I attest that I am the ECF user whose user ID and

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password are being used in the electronic filing of this document.

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/s/ George Kimbrell

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George Kimbrell

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CERTIFICATE OF SERVICE

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I hereby certify that on this 3rd day of October, 2018, a true and correct copy of the
foregoing document was filed electronically with the Clerk of the Court using CM/ECF. I also
certify that the foregoing document is being served on all counsel of record via transmission of

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Notices of Electronic Filing generated by CM/ECF.
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/s/ George Kimbrell

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George Kimbrell

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CASE NO. 3:16-cv-01574-VC
STIPULATION TO ENLARGE TIME

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[PROPOSED] ORDER
In consideration of the foregoing stipulation, the schedule for completing briefing on

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Defendants’ pending Motion for Judgment on the Pleadings (ECF No. 145) and any cross-

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motion by Plaintiffs is ordered as follows:

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Oct. 26

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Dec. 17

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Jan. 14

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Plaintiffs’ Opp/Cross-Motion for
Judgment on Pleadings
Defendants’ Reply/Opp to Pls. CrossMotion for Judgment on the Pleadings
Plaintiffs’ Reply in Support of its
Cross-Motion for Judgment on the
Pleadings

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IT IS SO ORDERED.

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Dated: October 4, 2018

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_______________________________
The Honorable Vince Chhabria
UNITED STATES DISTRICT JUDGE

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CASE NO. 3:16-cv-01574-VC
[PROPOSED] ORDER

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