FARM-TO-CONSUMER LEGAL DEFENSE FUND et al v. SCHAFER et al

Filing 53

REPLY to opposition to motion re 49 MOTION for Leave to File Voluntary Dismissal Without Prejudice Niewendorp's Claims Against MDA filed by DAN NOLT, GREG NIEWENDORP, FARM-TO-CONSUMER LEGAL DEFENSE FUND, ROBERT ALEXANDER, JOE GOLIMBIESKI, ROBERT KEYWORTH, GLEN MAST, ANDREW SCHNEIDER, ROSEANNE WYANT. (Cox, David)

FARM-TO-CONSUMER LEGAL DEFENSE FUND et al v. SCHAFER et al

Doc. 53

BEFORE THE UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Farm-to-Consumer Legal Defense Fund, et al. Plaintiffs v. U.S. Department of Agriculture Ed Schafer, Secretary, et al. Defendants : : : : : : : : : : : Case No. 1:08-cv-01546-RMC Judge Rosemary M. Collyer

PLAINTIFFS' REPLY TO MDA'S RESPONSE TO GREG NIEWENDORP'S MOTION FOR LEAVE TO VOLUNTARILY DISMISS HIS CLAIMS AGAINST MDA WITHOUT PREJUDICE MDA does not contest that Mr. Niewendorp's voluntary dismissal should be without prejudice and that his motion should be granted. The MDA does, however, include an inaccurate claim in its Response about the impact on the remaining Plaintiffs, which is why Plaintiffs file this Reply. MDA claims that "All Plaintiffs other than Niewendorp may have the eartags applied by others upon transfer of possession at the market." Defendant MDA's Response at ¶ 2. That is not true. As clearly stated by the March 1, 2007 "Order" of MDA: "Effective March 1, 2007, all cattle must be identified with official RFID electronic identification eartags prior to movement from a premises within Michigan, unless exempted by the director." Emphasis added. See MDA Appendix, pg. 17. Even if the tag can be applied at the sales barn when Plaintiffs sell their cattle, they still must pay for it and have their property assigned NAIS numbers. Moreover, under the March 2007 Order, Plaintiffs cannot sell their

Dockets.Justia.com

animals under private treaty or take them to other properties without tagging them, nor can Plaintiffs buy new or replacement cattle without an RFID tag. Mr. Niewendorp's motion for leave to voluntarily dismiss his claims against MDA without prejudice should be granted without reference to the remaining Plaintiffs. May 26, 2009 Respectfully submitted, /s/ David G. Cox David G. Cox (D.C. Bar No. OH 0020) 4240 Kendale Road Columbus, OH 43220 [e-mail] Phone: [phone] Counsel for Plaintiffs

2

CERTIFICATE OF SERVICE I hereby certify that on May 26, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Peter T. Wechsler [e-mail] Trial Attorney United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Counsel for USDA and James E. Riley [e-mail] First Assistant Danielle Allison-Yokom [e-mail] Assistant Attorney General Michigan Department of Agriculture Environment, Natural Resources and Agriculture Division 525 West Ottawa Street 6th Floor Williams Building Lansing, MI 48913 Counsel for MDA /s/ David G. Cox David G. Cox (D.C. Bar No. OH 0020)

3