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Cutter v. Food and Drug Administration

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 15, 2010

C. BROOKS CUTTER, PLAINTIFF,
v.
FOOD AND DRUG ADMINISTRATION AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

PARTIES' STIPULATION TO EXTEND PROTEST DATE AND RESET STATUS CONFERENCE; ORDER

Plaintiff, C. Brooks Cutter, and Defendants, the United States Food and Drug Administration ("FDA") and Department of Health and Human Services, through their attorneys, Benjamin B. Wagner, United States Attorney, and Yoshinori H. T. Himel, Assistant United States Attorney, respectfully request that this Court modify the schedule set forth in the Court's Order filed November 2, 2009.

In the "Parties' Stipulation to Stay Action until December 15, 2009, and Reset Status Conference; Proposed Order," approved November 2, 2009, the parties agreed to extend the time permitted for the Plaintiff to challenge FDA's withholdings until January 14, 2010. Plaintiff now needs another 30 days, that is, until February 16, 2010, to decide whether to make that challenge.

Should the decision be not to challenge the withholdings, there would be nothing left to litigate, and the parties should be able to stipulate dismissal.

The parties will not know the case status until February 16, 2010, which is after the status conference set for February 9, 2010, at 9:00 a.m. before Judge Beck. To serve judicial efficiency, the parties request that the status conference be continued until March 17, 2010, at 9:30 a.m., before Judge Beck.

The parties previously agreed that FDA will not prepare a Vaughn index of redacted information at this time. If Plaintiff decides to challenge FDA's withholdings, FDA agrees to produce a Vaughn index within thirty (30) calendar days after Plaintiff gives defense counsel of record and FDA counsel a notice of his intent to challenge the withholdings.

Based upon the foregoing, the parties move this Court to enter an order continuing the status conference set by Order filed November 2, 2009, from February 9, 2010, until March 17, 2010, at 9:30 a.m.

Dated: January 15, 2010

C. BROOKS CUTTER

Dated: January 14, 2010

BENJAMIN B. WAGNER United States Attorney

YOSHINORI H. T. HIMEL Assistant U. S. Attorney

Of Counsel: DAVID S. CADE Acting General Counsel MICHAEL M. LANDA Acting Associate General Counsel Food and Drug Division ERIC M. BLUMBERG Deputy Chief Counsel, Litigation MICHAEL HELBING Assistant Chief Counsel, Litigation U.S. Dept. of Health & Human Services Office of the General Counsel 5600 Fishers Lane Rockville, MD 20857

ORDER

Good cause appearing, the status conference presently set for 9:00 a.m. on February 9, 2010, is CONTINUED until March 17, 2010, at 9:30 a.m., before Judge Beck.

IT IS SO ORDERED.

20100115

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