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Gerawan Farming, Inc. v. United States Dep't of Agriculture

September 10, 2008

GERAWAN FARMING, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

SCHEDULING ORDER (Fed. R. Civ. P. 16)

Plaintiff's Motion for Summary Judgment Filing Deadline: November 18, 2008 Defendant's Opposition and Cross-Motion for Summary Judgment Filing Deadline: December 19, 2008 Plaintiff's Reply and Opposition to Cross-Motion for Summary Judgment Filing Deadline: January 16,2009 Defendant's Reply Filing Deadline: February 18, 2009 Hearing on Cross-Motions for Summary Judgment: March 16, 2009 at 1:30 p.m. in Courtroom 2 before the Honorable Anthony W. Ishii

I. Date of Scheduling Conference September 10, 2008

II. Appearances of Counsel

Brian C. Leighton appeared on behalf of Plaintiff Gerawan Farming, Inc. ("Plaintiff").

Assistant United States Attorney Jeffrey J. Lodge appeared on behalf of Defendant United States Department of Agriculture ("Defendant").

III. Factual and Legal Contentions

A. Summary of the Pleadings

1. Complaint

The complaint alleges as follows: On or about August 13, 2001, Plaintiff filed an administrative petition under the Agricultural Marketing Agreement Act alleging that the Nectarine Order and the Peach Order, and the authority to collect assessments from Gerawan Farming, Inc., used for speech related purposes, violated the First Amendment of the United States Constitution. Since that time, Gerawan has chosen to pay the Nectarine and Peach Committees roughly half of the assessments and deposited the withheld amount in a designated interest bearing account. On May 9, 2008, the Judicial Officer reversed the findings of the Administrative Law Judge, and ordered Gerawan to pay the past due assessments and applicable interest and late payment charges and assessed a civil penalty of $100,000.

2. Answer

The United States contends that all the speech at issue is government speech and there is no violation of the first amendment rights of the Plaintiff. The United States believes that the Supreme Court's decision in the case styled Secretary of Agriculture v. Livestock Marketing Ass'n, 544 U.S. 550, 125 S.Ct. 2055 (2005) is dispositive of the allegations in Plaintiff's complaint.

B. Orders Regarding Amendment of ...


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