AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 35

Consent MOTION to File Reply Brief out of Time re #33 Response to motion, by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Exhibit Plaintiffs' Reply in Support of Motion for Protective Order, #2 Text of Proposed Order)(Fee, J.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a/ ASTM
INTERNATIONAL;

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,

Case No. 1:13-cv-01215-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
PLAINTIFFS’ CONSENT MOTION TO FILE REPLY BRIEF OUT OF TIME
Plaintiffs/Counter-Defendants American Society for Testing and Materials d/b/a ASTM
International, National Fire Protection Association, Inc., and American Society of Heating,
Refrigerating, and Air Conditioning Engineers (“Plaintiffs”) respectfully move to file a reply
brief in support of their Motion for Protective Order out of time. Pursuant to LCvR 7(m), the
undersigned counsel discussed this motion with counsel for Defendant/Counter-Plaintiff
Public.Resource.Org, Inc. (“Defendant”), who consented to this Motion.
Plaintiffs filed a Motion for Protective Order on July 7, 2014. Defendant filed a brief in
opposition to Plaintiffs’ Motion on July 24, 2014. Plaintiffs’ reply brief was due on August 4,
2014. Due to a calendaring error, Plaintiffs did not file their brief by the August 4 deadline and
now move for leave to file their reply brief, attached as Exhibit A hereto, out of time.

Federal Rule of Civil Procedure 6(b)(1)(B) permits the Court to extend a deadline “if the
party failed to act because of excusable neglect.” Excusable neglect is an “elastic concept”
encompassing “situations in which the failure to comply with a filing deadline is attributable to
negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 394
(1993). The determination of whether neglect is “excusable” includes considerations of the
circumstances, including (1) the danger of prejudice to the non-moving party; (2) the length of
the delay and its potential impact on the judicial proceedings; (3) the reason for the delay; and
(4) whether the movant acted in good faith. Id.
Here, the delay is less than 10 days, such that there is no adverse impact on the judicial
proceeding, which is still in the discovery phase. There is also no danger of prejudice to
Defendant, who has consented to this Motion. Plaintiffs failed to file their brief by the deadline
due to an inadvertent calendaring error and have acted in good faith at all times. Thus, the Court
should grant Plaintiffs’ Motion. See Yesudian ex rel. United States v. Howard Univ., 270 F.3d
969, 971 (D.C. Cir. 2001) (affirming district court’s grant of motion to file brief out of time
where there was no prejudice to the non-moving party, the delay was brief, and the delay was
due to an error by the party’s counsel). A proposed Order is attached hereto as Exhibit B.

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Dated: August 13, 2014

Respectfully submitted,
/s/ J. Kevin Fee
Michael F. Clayton (D.C. Bar: 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar: 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel For American Society For Testing And Materials
d/b/a/ ASTM International
/s/ Kelly Klaus
Anjan Choudhury (D.C. Bar: 497271)
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Kelly M. Klaus
Jonathan H. Blavin
Munger, Tolles & Olson LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for National Fire Protection Association, Inc.
/s/ Kenneth Steinthal
Jeffrey S. Bucholtz (D.C. Bar: 452385)
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
Tel: [phone]
Email: [e-mail]
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Kenneth L. Steinthal
Joseph R. Wetzel
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiffs’ Consent Motion
to File Reply Brief Out of Time was served this 13th day of August, 2014 via CM/ECF upon the
following:
Counsel for Public.Resource.Org, Inc.:
Andrew Bridges
Kathleen Lu
David Halperin
Mitchell L. Stoltz
Corynne McSherry
Joseph Gratz
Mark Lemley

_/s/ Jordana Rubel______
Jordana Rubel

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