UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION
September 10, 2009
LEAGUE TO SAVE LAKE TAHOE AND SIERRA CLUB, PLAINTIFFS,
TAHOE REGIONAL PLANNING AGENCY, DEFENDANT.
The opinion of the court was delivered by: Judge: Hon. Lawrence K. Karlton
REQUEST TO DEEM PRELIMINARY INJUNCTION REPLY BRIEF TIMELY FILED; DECLARATION OF WENDY PARK IN SUPPORT THEREOF; and ORDER
Pursuant to Local Rule 5-134 and United States District Court, Eastern District of California CM/ECF Final Procedures Rule C(20.0),*fn1 plaintiffs Sierra Club and League to Save Lake Tahoe ("plaintiffs") file this request that the Court deem their preliminary injunction reply brief, filed in the above-entitled action on September 8, 2009 (Doc. 64), timely filed. The facts and authorities upon which this request is made are stated in the Declaration of Wendy Park, provided herewith. On the basis of those facts and authorities, plaintiffs respectfully request that the Court deem their reply brief in support of their motion for preliminary injunction and supporting papers timely filed.
DATED: September 8, 2009
Wendy S. Park
TRENT W. ORR WENDY S. PARK Earthjustice
Counsel for Plaintiffs League to Save Lake Tahoe & Sierra Club
DECLARATION OF WENDY PARK
1. I am an attorney with Earthjustice, admitted to practice law in California. I am counsel for League to Save Lake Tahoe and Sierra Club in this action. I make this declaration based upon my own personal knowledge and if called upon to testify, could and would do so competently.
2. On September 4, 2009, plaintiffs' preliminary injunction reply brief ("reply brief") was due to be filed for hearing of the motion on September 14, 2009. See Doc. 45. At approximately 5:20 p.m. on September 4, I attempted to log onto the Eastern District of California CM/ECF website to file the reply brief. The CM/ECF website stated that the CM/ECF system was unavailable due to a system "outage" in effect from 5:00 p.m., September 4, 2009 until 8:00 p.m., Monday, September 7, 2009 (the Labor Day holiday). Until that point, I was unaware of the system outage and had not received prior notice of the outage.
3. At approximately 5:45 p.m. on September 4, my litigation assistant Jessie Baird emailed to the Court a Microsoft Word version of the reply brief, pursuant to the Court's Initial Pretrial Scheduling Order of November 24, 2008 (Doc. 7, ¶ 10). At approximately 6:00 p.m., I emailed to all counsel on the CM/ECF electronic service list in this case a PDF version of the reply brief and supporting documents.
4. On the morning of September 8, 2009 at approximately 10:00 a.m., I electronically filed the reply brief and supporting documents through the CM/ECF system.
5. Plaintiffs now request that the Court deem the reply brief timely filed. Under Local Rule 5-134(c), "[t]he Clerk's Office shall deem the District ECF site to be subject to a technical failure on a given day if the site is unable to accept filings continuously or intermittently over the course of any period of time greater than two hours after 2:00 p.m. on a given day."*fn2 Further, "a party may file on the next business day following the technical failure that is announced on the Court's website." Id. at 5-134(c)(1). The ECF system was subject to a technical failure from the evening of Friday, September 4 until the evening of September 7, 2009, the Labor Day Holiday. In compliance with Local Rule 5-134(c), plaintiffs filed their reply brief on Monday, September 8, 2009, the next business day following the technical failure.
6. Under Local Rule 5-134(c)(2), "[i]f filing is impossible due to the District's ECF failure, counsel shall timely serve the document directly on all counsel in the action by e-mail, overnight delivery or other expeditious means appropriate to the circumstances." As related in paragraph 4, plaintiffs timely served the reply brief by e-mail on all counsel in the action the day that the reply brief was due.
7. Finally, pursuant to ECF Final Procedures Rule C.20.0 "[a] filing party whose filing is made untimely as the result of a technical failure of the court's ECF site must seek appropriate relief from the court. Except in extraordinary circumstances, or where the court has previously determined not to excuse untimely filings due to technical failures, or has mandated a paper filing due to the technical failure, the court will excuse untimely filings caused by the District ECF failure." Because none of the foregoing exceptions apply in this case; plaintiffs filed the reply brief on the next business day following the technical failure; and none of the other parties in this action have been prejudiced by the delay in filing, the appropriate relief in this case is to deem plaintiffs' reply brief timely filed.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
DATED: September 8, 2009
Pursuant to Local Rule 5-134(c) and ECF Final Procedures Rule C.20.0, and in view of the representations of plaintiffs' counsel as set forth in the Declaration of Wendy Park, IT IS HEREBY ORDERED THAT plaintiffs' Reply Brief in Support of Motion for Preliminary Injunction (Doc. 64- 1) and the accompanying filings (Doc. 64-1 through 64-5) are deemed to have been timely filed.