Smith v. City of Medford, Oregon

Filing 71

ORDER: This ORDER confirms and reinforces the Courts previous Order 70 , in which the Court granted Defendants Motion for Extension of Time. If Mr. Dimitre has legitimate reasons for why the Order granting the extension should be withdrawn, he is granted leave to file an affidavit under oath explaining those reasons by 5:00 PM on 04/15/2020. Signed on 04/13/2020 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

JERRY SMITH,

Civ. No. 1:17-cv-00931-CL

Plaintiff,

ORDER

v.
CITY OF MEDFORD,
Defendant.
_______________________________________
CLARKE, Magistrate Judge.

This ORDER confirms and reinforces the Court’s previous Order (#70), in which the
Court granted Defendant’s Motion for Extension of Time. Plaintiff’s attorney is granted leave to
file an affidavit under oath explaining why the extension should be rescinded.
BACKGROUND
Plaintiff brings this action against the City of Medford for alleged violations of the
Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) for lack of accessible
sidewalks and streets in the City of Medford, Oregon. Pltf.’s Fourth Amended Complaint (#42).

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On January 13, 2020, the City of Medford filed a Motion for Summary Judgment (#51) and
requested oral argument. Plaintiff’s response, originally due on February 3, 2020, was extended to
February 28, 2020 via stipulated motion. On February 28, 2020, Plaintiff filed his Response (#58)
consisting of 40 pages of memoranda and nearly 800 pages of exhibits. Defendant’s reply
memorandum was originally due March 13, 2020. Defendant’s reply memo deadline was then
extended to April 10, 2020 via unopposed motion, based upon “the voluminous summary judgment
record and due to a temporary swell in workload caused by a temporary period of short-staffing in
the undersigned’s office.” (#66 and #67).
On April 3, 2020, Defendant City of Medford filed a second Motion for Extension of Time
with request for expedited consideration. This time, the motion was opposed. In his declaration in
support of the second motion for extension, City Attorney Eric Mitton, explained that the need for a
second extension related to the current global pandemic of COVID-19. Specifically, Mr. Mitton
stated,

Since that first motion for extension of time occurred on March 9,
circumstances changed substantially. The COVID-19 pandemic took hold
and increased at an exponential rate. Legal work related to COVID-19
response ended up taking over the vast majority of my workload for several
weeks. The State of Oregon declared a state of emergency on March 12.
Medford’s Mayor declared a local emergency on March 16, ratified by
Medford’s City Council on March 19. The emergency declaration, and
researching and advising policy-makers on precisely what actions that
authorized and how, required substantial legal research and legal
involvement. The City of Medford closed its City buildings to the public
and transitioned a substantial portion of its workforce to work-from-home
status on March 20. The work up to this transition required substantial legal
research and legal involvement in the associated Human Resources matters.
The City is continuing to take other COVID-related actions requiring
substantial legal research and legal work, such as an executive order from
the City Manager establishment of additional temporary transitional
housing for homeless individuals on March 30th to help mitigate the
pandemic’s effect on the homeless population. Throughout this time, the a
great deal of my time has been spent researching and helping implement
these various COVID-related matters; my normal work load has had to take
a back seat to these emergency matters.

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Mitton Decl. at 2 (#69). Under such unprecedented emergency circumstances, the Court would
expect no objection. However, Mr. Mitton confirmed that the City’s motion for extension was
opposed because Plaintiff’s attorney withheld his consent on the condition that he be given the
right to file a sur-reply. The City of Medford understandably declined to agree to this condition:
I respectfully disagreed, pointing out the types of briefing set forth in Local
Rule 7-1(f) (unless otherwise ordered by the Court, briefing consists of the
motion, the response, and the reply). After more discussion on this issue,
Plaintiff’s counsel reemphasized that he would agree to the extension of time
as part of a package deal that also included Plaintiff gaining the right to file a
sur-reply to the City’s motion for summary judgment:
Well Eric. You’re asking for a second, long extension. I am happy
to give it, but would like a sur reply. Let’s give the judge a
stipulation to an extension and sur reply. I doubt he would say no.
The City needs an extension of time because of my COVID-19-related work
discussed above, which had to take priority over normal matters. But I do not
wish to surrender substantive rights of the City in order to obtain this extension,
including the right of a moving party to have the last word on its own motion,
as set forth in LR 7-1(f).

Mitton Decl. at 3.
After considering the City of Medford’s motion and supporting declaration, the Court
granted the Second Motion for Extension of Time on April 6, 2020. (#70). Remarkably, on the
morning of April 13, 2020, the Court received an ex parte email from Plaintiff’s counsel stating,
“I am wondering why Defendant’s request for an extension was granted, when it was opposed,
and the Court did not give me time to respond. There are legitimate concerns regarding the
granting of the extension, and I did not get a chance to put them in front of the court. I am
requesting that the approval be rescinded until such time as I have had a chance to respond.”
DISCUSSION
Reflecting this court’s and this state’s long tradition of professionalism in the practice of
law, Local Rule 83-8, entitled “Cooperation Among Counsel,” provides in relevant part:

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The Court may impose sanctions if it finds that counsel has been
unreasonable in not accommodating the legitimate requests of opposing
counsel. In a case where an award of attorney fees is applicable, the Court
may consider lack of cooperation when setting the fee.
Local Rule 83-8(b). Under normal circumstances, lawyers arguing over the propriety of a threeweek extension for filing a reply when the record is particularly voluminous and oral argument
has not yet been set would contravene the local rule’s directive. Under the current national health
emergency, refusal to agree is incomprehensible.
Context feeds common sense here. On March 23, 2020, Governor Brown issued
Executive Order 20-12 in which, following the president’s March 13, 2020 declaration of a
national health emergency because of the COVID-19 virus and her previous March 8, 2020
declaration of a state-wide health emergency, she ordered Oregonians to stay at home. Executive
Order 20-12, at 1, 3. She prohibited the operation of “non-essential” businesses (which term
includes law firms and law offices), ordered closed all Oregon colleges and universities in the
state, and imposed severe restrictions on the ability of childcare facilities to continue operating.
Id., at 1, 4.
The health emergencies announced, and safety protocols implemented by national and
State of Oregon authorities, have created unprecedented challenges and changes to the manner in
which personal needs and occupational endeavors are accomplished. The effects of the current
health emergency have been felt equally in this court, as evidenced by Standing Orders 2020-4,
2020-5, 2020-7, 2020-8 issued by Chief Judge Marco Hernandez between March 12, 2020 and
March 31, 2020, as well as the page on the court’s website dedicated to information about
COVID-19’s effect on court operations. See https://www.ord.uscourts.gov/index.php/
information-regarding-coronavirus-disease-covid-19-and-court-operations, last visited April 13,
2020. Thus, criminal trials have been continued, civil jury trials have been suspended, court

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hearings are by phone or video conference, and non-essential court staff have been directed to
telework.
This context proves true the underlying bases for Mr. Mitton’s declaration. As the City
Attorney for the City of Medford, Mr. Mitton is responsible for providing legal advice to the
City’s policy-makers, including advising those policy-makers during the unprecedented
circumstances of the COVID-19 pandemic. Mr. Dimitre cannot credibly dispute the current health

emergency’s impact upon Oregonians and the important role that Mr. Mitton plays in keeping
the community of Medford safe. The court is left to wonder, then, both why Mr. Dimitre refused
to agree to an extension and what “legitimate concerns” he has now as a basis for asking the
Court to rescind its Order granting the extension.
As presented in Mr. Mitton’s declaration, it appears that Mr. Dimitre was willing to
consent to the extension on the condition that Plaintiff be granted the right to file a sur-reply to
the pending summary judgment motion. Mitton Decl. at 3. The Court finds this condition
unreasonable. As Mr. Mitton pointed out to Mr. Dimitre, and pursuant to Local Rule 7-1(f),
briefing consists of the motion, the response, and the reply. Once a reply is filed, no additional
memoranda, papers or letters may be filed without court approval. Local Rule 7-1(e),(f). Therefore, it
would be improper and impermissible for Mr. Mitton to agree to such a condition, as only the Court
can grant leave to file a sur-reply. Moreover, under general standards, a sur-reply is permitted only
when new arguments are raised in the reply. See JG v. Douglas County School Dist., 552 F.3d

786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483
(9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant an
opportunity to respond). For Mr. Dimitre to anticipate the need for a sur-reply prior to having
received a reply is contrary to the basic rules of motion practice.
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For these reasons, the Court finds both Mr. Dimitre’s refusal to consent to the extension and
attempt to condition his consent upon an agreement that he may file a sur-reply unreasonable. If Mr.
Dimitre has legitimate reasons for why the Order granting the extension should be withdrawn, he is
granted leave to file an affidavit under oath explaining those reasons by five o’clock p.m. on
Wednesday, April 15, 2020.

ORDERED and DATED this 13th day of April, 2020.
s/ Mark Clarke
MARK D. CLARKE
United States Magistrate Judge

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