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The Sierra Club and Environmental v. United States Environmental Protection Agency

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


May 1, 2012

THE SIERRA CLUB AND ENVIRONMENTAL INTEGRITY PROJECT,
PLAINTIFFS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
DEFENDANT.

The opinion of the court was delivered by: Maria-elena James Chief United States Magistrate Judge

JOINT MOTION TO EXTEND THE SUMMARY JUDGMENT REPLY BRIEF DEADLINE; DECLARATION OF 16 COUNSEL; [PROPOSED] ORDER

Pursuant to this Court's Order granting Plaintiffs' Unopposed Motion To Extend The Summary Judgment Reply Brief Deadline, Dkt. 40, Plaintiffs' summary judgment reply brief is due today, May 1, 2012. Pursuant to Federal Rule of Civil Procedure 6(b), all Parties now move for a modest enlargement of time until Friday, May 4, 2012, in which Plaintiffs are to file their summary judgment reply brief. 25 This motion is supported by the Declaration of Counsel incorporated into this document. Infra. 26 A district court's decision regarding an extension of time lies well within its discretion. United States ex rel. Hawaiian Rock Prods. Corp. v. A.E. Lopez Enters., 74 F.3d 972, 976 (9th Cir.1996) (estab-28 lishing that such a decision will not be disturbed absent an abuse of discretion).

largement of time. 4

For the following reasons, the all Parties assert good cause exists to grant this request for an en-

1.By email with a date/time stamp of 10:04 am, May 1, 2012, Plaintiffs' counsel David Bahr, received notice from plaintiff Sierra Club, that it had received a large volume of records released by EPA in response to the FOIA request that is the subject of this suit.

2.Plaintiffs' counsel had been entirely unaware that this release was pending. 3.In a telephone conversation with Mr. Bahr, EPA's trial counsel, Abraham Simmons, stated that he was similarly unaware that this release was pending. 4.Based on counsels' initial review of the EPA's cover letter and a declaration of a Lu- minant employee, it appears that this release constitutes 183 pdf files totaling ap- proximately 6,000 pages of material.

5. Based on counsels' initial review of the EPA's cover letter and a declaration of a Luminant employee, it appears that the information in at least some of these docu- ments is responsive to claims and defenses asserted by the Parties in this case. 6.The Parties require a brief period to evaluate the contents of the recently released re- cords and Plaintiffs require time in which to evaluate their relevance to arguments to be presented in their summary judgment reply.

7.This request will not unreasonably delay final disposition of this case. The summary judgment argument date was recently continued by a week until May 17, 2012. Dkt. # 38. 8.No party will be disadvantaged by this enlargement of time. If this motion is granted, with the recent continuance of the argument date, the parties and the Court will actu- Filed05/01/12 Page3 of 5 ally have same amount of time between the filing of the reply brief and the hearing as 2 under the schedule previously approved by the Court, dkt. # 31, (13 days). 9.This is the Parties' first joint request for an enlargement of time in which to brief 3 4 summary judgment in this case.

10.This request for enlargement is made in good faith and for no improper purpose.

WHEREFORE, the Parties respectfully request the Court to enlarge Plaintiffs' time to file their summary judgment reply brief until May 4, 2012.9 Respectfully submitted for the Court's consideration, this 1st day of May, 2012.

__s/ David Bahr__________________ David Bahr (Oregon Bar No. 901990) Bahr Law Offices, P.C. 1035 1/2 Monroe Street Eugene, OR 97402 (541) 556-6439 davebahr@mindspring.com ___s/ Abraham A. Simmons________ ABRAHAM A. SIMMONS Assistant United States Attorney Attorney for the Federal Defendants 18 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 19 Telephone: (415) 436-7264 Facsimile: (415) 436-6748 20 Email: abraham.simmons@usdoj.gov

DECLARATION OF COUNSEL

1.My name is David Bahr. I am Plaintiffs' lead counsel in this case. This declaration is based on 24 25 my personal knowledge and experience.

2.By email with a date/time stamp of 10:04 am, May 1, 2012, I received notice from plaintiff Si-27 erra Club, that it had received a large volume of records released by EPA in response to the FOIA re-28 quest that is the subject of this suit. 2

3.I had been entirely unaware that this release was pending. 3

4.In a telephone conversation with me, EPA's counsel trial counsel, Abraham Simmons, stated that 4 he was similarly unaware that this release was pending. 5 6 ployee, it appears that this release constitutes 183 pdf files totaling approximately 6,000 pages of mate-8 rial. 9

5.Based on counsels' initial review of the EPA's cover letter and a declaration of a Luminant em- 6.Based on counsels' initial review of the EPA's cover letter and a declaration of a Luminant em-10 ployee, it appears that the information in at least some of these documents is responsive to claims and 11 defenses asserted by the Parties in this case. 12 13

Plaintiffs require time in which to evaluate their relevance to arguments to be presented in their sum- mary judgment reply. 16

8.This is the Parties' first joint request for an enlargement of time in which to brief sum-17 mary judgment in this case. 18

9.This request for enlargement is made in good faith and for no improper purpose. 19 20 21 and correct.

7.The Parties require a brief period to evaluate the contents of the recently released records and Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true Executed this 1st day of May, 2012, in Eugene, Oregon.

__s/ David Bahr__________________ David Bahr (Oregon Bar No. 901990) Bahr Law Offices, P.C. 1035 1/2 Monroe Street Eugene, OR 97402 (541) 556-6439 davebahr@mindspring.com

This Court, having considered the Parties' Joint Motion To Extend The Summary Judgment Re- 3 ply Brief Deadline, and after considering the moving papers, arguments of counsel, and all other matters 4 presented to the Court, HEREBY FINDS AND ORDERS THAT: 5 6

Plaintiffs' summary judgment reply brief shall be due no later than May 4, 2012.

IT IS SO ORDERED, this _____ day of May, 2012.

Presented by: 21

__s/ David Bahr__________________

David Bahr (Oregon Bar No. 901990) Plaintiffs' counsel 23 24 __s/ Abraham A. Simmons_________ ABRAHAM A. SIMMONS 25 Assistant United States Attorney Attorney for the Federal Defendants

20120501

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