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A. F. Rothschild Fund v. Department of Health and Human Services

UNITED STATES DISTRICT COURT Northern District of California Oakland Division


September 26, 2011

A. F. ROTHSCHILD FUND,
PLAINTIFF,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
DEFENDANT.

The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge

ORDER RE PLAINTIFF'S OPTIONAL SUR-REPLY

On August 5, 2011, pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants ("Defendants") filed a motion to dismiss Plaintiff A.F. Rothschild Fund's complaint, which alleges Department of Health and Human Services and Centers for Disease Control and Prevention violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Motion, ECF No. 13 at 4. In Defendants' reply brief, they discuss new factual developments relating to Defendants' final 21 determination letter dated September 13, 2011. Reply, ECF No. 21 at 3-4. Given that Defendants 22 raised new evidence in their reply brief, Plaintiff is entitled to respond. See Provenz v. Miller, 102 23 F.3d 1478, 1483 (9th Cir. 1996). Accordingly, the court ORDERS that Plaintiff may file a three-24 page sur-reply that addresses Defendants' new evidence by Thursday, September 29, 2011.

IT IS SO ORDERED.

20110926

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