Natural Resources Defense Council, Inc. et al v. United States Consumer Product Safety Commission

Filing 13

MOTION for Summary Judgment. Document filed by Natural Resources Defense Council, Inc., Public Citizen, Inc.. Return Date set for 2/2/2009 at 10:00 AM.(Colangelo, Aaron)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ____________________________________ NATURAL RESOURCES DEFENSE ) COUNCIL, INC., and PUBLIC CITIZEN, ) INC., ) ) Plaintiffs, ) v. ) ) U.S. CONSUMER PRODUCT ) SAFETY COMMISSION, ) ) Defendant. ) ____________________________________)

08 Civ. 10507 (PGG)

NOTICE OF MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, plaintiffs Natural Resources Defense Council and Public Citizen hereby move for summary judgment on the basis that there is no genuine issue of material fact and plaintiffs are entitled to judgment as a matter of law. The Consumer Product Safety Improvement Act ("CPSIA") bans, beginning February 10, 2009, the sale of toys and other child care products containing more than a minimal percentage of one of six chemicals called phthalates, which are known to harm human health. Defendant U.S. Consumer Product Safety Commission has violated the CPSIA and the Administrative Procedure Act by authorizing the sale of such products after February 10, 2009, so long as the products were manufactured before that date. In support of this motion, plaintiffs rely on the accompanying (1) Memorandum of Law in Support; (2) Statement of Undisputed Material Facts, pursuant to Local Rule 56.1; (3) Declaration of Mitchell S. Bernard and attached Exhibits A through J; (4) Declaration of Dr. Sarah Janssen and attached Exhibit A; (5) Declaration of Berit Block; (6) Declaration of Jasanna

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Britton; (7) Declaration of Sean Harrington; (8) Declaration of Karen Kraut; (9) Declaration of Anna Lonergan; (10) Declaration of Linda Lopez; (11) Declaration of Francesca Olivieri; (12) Declaration of Julia Pershan; (13) Declaration of Joseph Stoshak; (14) Declaration of T. Kathryn Tucker; (15) Declaration of Daniel R. Vice; and (16) Proposed Order. All documents are being separately filed electronically, with the exception of the proposed order, consistent with the Court's e-filing procedures.

Respectfully submitted, /s/ Mitchell S. Bernard Mitchell S. Bernard (MB 5823) Aaron Colangelo Avinash Kar Natural Resources Defense Council 40 West 20th Street New York, New York 10011 [phone] [phone] (fax) Counsel for Plaintiffs Of Counsel: Brian Wolfman Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20007 Dated: December 17, 2008

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CERTIFICATE OF SERVICE I hereby certify that I caused to be served a true and correct copy of Plaintiffs' Notice of Motion for Summary Judgment on the following counsel for defendant, by email and FedEx, on December 17, 2008. James Cott, Chief, Civil Division Beth Goldman, AUSA U.S. Attorney's Office Southern District of New York 86 Chambers Street New York, NY 10007 Cheryl Falvey (FedEx only) General Counsel U.S. Consumer Product Safety Commission 4330 East West Highway Bethesda, MD 20814 /s/ Mitchell S. Bernard Mitchell S. Bernard

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