R.J. REYNOLDS TOBACCO COMPANY et al v. UNITED STATES FOOD AND DRUG ADMINISTRATION et al

Filing 36

MOTION for Order for Court to Consider Arguments Made in Summary Judgment Memorandum in Deciding Preliminary Injunction by MARGARET A. HAMBURG, KATHLEEN G. SEBELIUS, UNITED STATES FOOD AND DRUG ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Cutini, Drake)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
R.J. REYNOLDS TOBACCO
COMPANY, et al.,
Plaintiffs,
v.
UNITED STATES FOOD AND
DRUG ADMINISTRATION, et al.,
Defendants.

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No. 1:11-cv-1482 (RJL)

DEFENDANTS’ MOTION, AND MEMORANDUM IN SUPPORT, TO INCORPORATE
SUMMARY JUDGMENT BRIEF INTO OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION
Defendants hereby move the Court to consider, in the Court’s review of plaintiffs’
pending preliminary injunction motion, the arguments presented in defendants’ summary
judgment memorandum, filed October 21, 2011, as well as those presented in defendants’
opposition to the preliminary injunction motion. In seeking their preliminary injunction,
plaintiffs incorporated by reference the arguments that they made in the memorandum filed in
support of their summary judgment motion. See Plaintiffs’ PI Mem. at 11-13. While plaintiffs
had well over sixty days after the Final Rule to prepare their summary judgment and preliminary
injunction briefs, the government’s preliminary injunction opposition was prepared in twenty-one
days. To the extent that the Court intends to issue separate rulings on the preliminary injunction
motion and cross-motions for summary judgment, defendants respectfully ask that the Court
consider, in connection with the preliminary injunction motion, the arguments presented in
defendants’ summary judgment memorandum as well as those presented in defendants’
opposition to the preliminary injunction motion. The undersigned attorney for defendants, Drake

Cutini, has contacted attorneys for plaintiffs, and plaintiffs’ attorney Warren Postman stated that
plaintiffs do not agree to this motion, and will likely file an opposition. A proposed order is
attached.
Respectfully submitted,
Dated: October 25, 2011
Of Counsel:
WILLIAM B. SCHULTZ
Acting General Counsel
ELIZABETH H. DICKINSON
Acting Associate General Counsel
Food and Drug Division

ERIC M. BLUMBERG
Deputy Chief Counsel, Litigation
KAREN E. SCHIFTER
Senior Counsel
U.S. Department of Health & Human Services
Office of the General Counsel
10903 New Hampshire Ave.
Silver Spring, MD 20993-0002

TONY WEST
Assistant Attorney General
BETH S. BRINKMANN
Deputy Assistant Attorney General
MAAME EWUSI-MENSAH FRIMPONG
Acting Deputy Assistant Attorney General

________/s/________________
DRAKE CUTINI
DANIEL K. CRANE-HIRSCH
Attorneys, Consumer Protection Branch
PO Box 386
Washington, DC 20044
202-307-0044 (Cutini)
[e-mail]
________/s/_________________
MARK B STERN
ALISA B. KLEIN
SARANG V. DAMLE
DANIEL TENNY
LINDSEY POWELL
Attorneys, Appellate Staff
Civil Division, Room 7217
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
202-514–5735 (Damle)
Fax: [phone]
[e-mail]