MCCULLOUGH et al v. LOCKE et al
Filing
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OPINION. Signed by Judge Mary L. Cooper on 11/15/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRADELL McCULLOUGH, et al.,
Plaintiffs,
v.
GARY LOCKE, et al.,
Defendants.
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CIVIL ACTION NO. 10-314 (MLC)
O P I N I O N
THE PLAINTIFFS brought this action challenging a final rule
issued as Amendment 11 to the Atlantic Sea Scallop Fishery
Management Plan, 73 Fed. Reg. 20090-20133 (Apr. 14, 2008).
entry no. 1, Compl. at 2.)
(Dkt.
The Plaintiffs allege that the
Defendants’ adoption of Amendment 11 violates the Fifth Amendment
of the United States Constitution; the Administrative Procedures
Act, 5 U.S.C. §§ 701-706; the Regulatory Flexibility Act, 5
U.S.C. §§ 601-612; the Magnuson-Stevens Fishery Conservation and
Management Act of 2005, 16 U.S.C. § 1801 et seq.; and the
Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006, 16 U.S.C. § 1801 et seq.
(Id.)
THE COURT entered an order on July 8, 2010, staying and
administratively terminating this action on the ground that it
concerns claims that are duplicative of the claims brought in
General Category Scallop Fishermen v. Locke, No. 08-2264 (MLC)
(“First Action”).
(Dkt. entry no. 10, 7-8-10 Order.)
The
plaintiffs’ appeal from the Court’s entry of judgment in favor of
the defendants in the First Action was at that time pending
before the United States Court of Appeals for the Third Circuit
(“Court of Appeals”).
The Court, in administratively terminating
the action, granted the Plaintiffs leave to move to reopen the
action within twenty days of a resolution of the appeal in the
First Action.
(7-8-10 Order at 4.)
THE COURT OF APPEALS issued an opinion on March 16, 2011,
affirming this Court’s grant of summary judgment in favor of the
defendants in the First Action.
See General Category Scallop
Fishermen v. Locke, 635 F.3d 106 (3d Cir. 2011).
The Court of
Appeals denied plaintiffs’ request for a rehearing en banc on
April 28, 2011.
(See dkt. entry no. 13, 10-7-11 Order at 2.)
THE PLAINTIFFS moved to reopen the action on July 27, 2011.
(Dkt. entry no. 11, Mot. to Reopen.)
to reopen the action as untimely.
The Court denied the motion
(10-7-11 Order at 2.)
However, the Court granted the Plaintiffs leave to move before
the Magistrate Judge for leave to file an amended complaint, and
indicated that (1) such motion should address the preclusive
effect, if any, of the judgment in the First Action, and (2) if
the Plaintiffs did not so move within thirty days of entry of the
10-7-11 Order, the Court would dismiss the action with prejudice.
(Id. at 2-3.)
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THE DEFENDANTS now request that the Court dismiss the action
with prejudice, pursuant to the 10-7-11 Order, on the grounds
that the Plaintiffs have not moved for leave to file an amended
complaint within the time allowed.
(Dkt. entry no. 14, Notice &
Request for Dismissal.)
THE COURT finds that the Plaintiffs have not complied with
the instructions of the 10-7-11 Order in the time allowed.
For
good cause appearing, the Court will grant the Defendants’
request.
The Court will issue an Order and Judgment separately.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
November 15, 2011
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