Wall v. Centers For Disease Control & Prevention — Court Filing, Doc. 133
- Date
- 2021-09-30
Summary
Federal Defendants' Motion for Leave to File a Combined 25-Page Reply Brief on or Before September 30, 2021, filed August 20, 2021 as Document 133 in Lucas Wall v. Centers for Disease Control and Prevention, et al., Case No. 6:21-cv-975-PGB-DCI, in the U.S. District Court for the Middle District of Florida, Orlando Division. The federal defendants ask to file one combined reply in support of their motions to dismiss and for summary judgment, with additional time to prepare it. As good cause they cite the length of the complaint and its 210 exhibits, the plaintiff's combined opposition filed August 18, 2021 with 218 new exhibits, and new arguments raised in that brief. The Local Rule 3.01(g) certification states that counsel for GOAA and LYNX do not oppose and that the plaintiff opposes the motion.
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Case 6:21-cv-00975-PGB-DCI Document 133 Filed 08/20/21 Page 1 of 5 PageID 4747
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LUCAS WALL,
Plaintiff,
v. Case No. 6:21-cv-975-PGB-DCI
CENTERS FOR DISEASE
CONTROL AND PREVENTION,
et al.,
Defendants.
FEDERAL DEFENDANTS’ MOTION FOR LEAVE TO FILE A COMBINED
25-PAGE REPLY BRIEF ON OR BEFORE SEPTEMBER 30, 2021
Federal Defendants respectfully request leave to file one combined 25-page
reply brief, on or before September 30, 2021, in support of their motions to dismiss and
for summary judgment. As good cause, Federal Defendants offer the following:
1. Plaintiff filed this action just over two months ago, on June 7, 2021. ECF
No. 1. Plaintiff’s complaint runs over 200 pages and includes 210 exhibits.
2. On August 9, 2021—the original answer deadline—Federal Defendants
moved to dismiss. ECF No. 125. That motion to dismiss was combined with a
cross-motion for summary judgment, and an opposition to Plaintiff’s motion for
summary judgment, in one 70-page brief. See ECF No. 105. Federal Defendants also
filed three different certified administrative records on that date. See ECF No. 113.
Case 6:21-cv-00975-PGB-DCI Document 133 Filed 08/20/21 Page 2 of 5 PageID 4748
3. Plaintiff likewise obtained leave of the Court to file one combined
47-page opposition to Federal Defendants’ dispositive motions and reply in support of
his motion for summary judgment. ECF No. 105. Plaintiff filed that combined brief
early, on August 18, 2021. Plaintiff’s combined brief raises several new arguments
that do not appear in the complaint or in any prior filings. 1 Plaintiff’s combined brief
was also accompanied by 218 new exhibits, totaling over 1,500 additional pages.
4. Federal Defendants thus respectfully request leave to file a reply in
support of their motion to dismiss because (1) Plaintiff has challenged important
public-health policies of significance to the Executive Branch, (2) Plaintiff has
submitted hundreds of exhibits over thousands of pages, and (3) Plaintiff raised several
new arguments for the first time in his latest brief. This would also promote efficiency,
as Federal Defendants already intend to file a reply (as of right) in support of their
motion for summary judgment. See Local Rule 3.01(d).
5. Federal Defendants also respectfully request leave to combine their
replies in support of their motions to dismiss and for summary-judgment into one filing
of 25 pages or less. The additional pages are requested for the same reasons as above.
6. Federal Defendants also respectfully request a brief period of additional
time to prepare their reply brief. The additional time is sought for the same reasons as
above, but also to allow sufficient time for review within the Executive Branch, and to
1
See, e.g., ECF No. 130 at 2 (“The FTTM and ITTR are orders, not regulations.”), id. at 23-26
(“[T]he FTMM is illegal because it forces Americans to use a medical device (face masks), most of
which are approved by FDA under Emergency Use Authorization.”).
2
Case 6:21-cv-00975-PGB-DCI Document 133 Filed 08/20/21 Page 3 of 5 PageID 4749
avoid conflicts with the pre-existing professional obligations of counsel. In the coming
days and weeks, undersigned counsel has several significant pre-existing litigation
deadlines, including multiple briefs, and two preliminary-injunction hearings in other
substantial matters. Plaintiff’s early filing unexpectedly altered counsel’s anticipated
schedule for preparing a reply. And this case would still be primed for faster resolution
than would be typical in a case like this (in part because Federal Defendants moved to
dismiss on the original answer deadline).
7. This request would not meaningfully prejudice any other party. Plaintiff
notes in his latest filing that he recently “rebooked [his] flight to Germany for Sept.
12,” and states that it is “critical this Court vacate these policies before Sept. 12.” ECF
No. 130 at 34 n.18, 43. But even on the current schedule, there is no realistic possibility
that judgment would be entered before September 12, particularly given Plaintiff’s
desire for oral argument, and the likelihood that some party files objections to the
forthcoming Report & Recommendation. And there is no justification for any atypical
urgency, given that the Court has already denied Plaintiff’s TRO motion, ECF No.
28, and Plaintiff abandoned his efforts to obtain a preliminary injunction.
LOCAL RULE 3.01(g) CERTIFICATION
Pursuant to Local Rule 3.01(g), on August 20, 2021, counsel for the Federal
Defendants conferred with all other parties (or their counsel) by email or phone.
Counsel for Defendants GOAA and LYNX each reported that they do not oppose this
motion. Plaintiff reported (by email and over the phone) that he opposes this motion.
3
Case 6:21-cv-00975-PGB-DCI Document 133 Filed 08/20/21 Page 4 of 5 PageID 4750
Dated: August 20, 2021 Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
KARIN HOPPMANN
Acting United States Attorney
ERIC B. BECKENHAUER
Assistant Branch Director
By: /s/ Stephen M. Pezzi
MARCIA K. SOWLES
Senior Trial Counsel
STEPHEN M. PEZZI
Trial Attorney
United States Department of Justice
Civil Division
Federal Programs Branch
1100 L Street NW
Washington, DC 20005
Telephone: 202-305-8576
Email: stephen.pezzi@usdoj.gov
ADAM R. SMART
Assistant United States Attorney
USA No. 195
400 W. Washington Street, Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
Facsimile: (407) 648-7588
Email: adam.smart@usdoj.gov
Counsel for the Federal Defendants
4
Case 6:21-cv-00975-PGB-DCI Document 133 Filed 08/20/21 Page 5 of 5 PageID 4751
CERTIFICATE OF SERVICE
Although Plaintiff is proceeding pro se, he has been authorized by the Court to
use the CM/ECF system. ECF No. 14. Accordingly, Plaintiff (along with counsel for
all other parties) will receive service of this filing through the CM/ECF system.
/s/Stephen M. Pezzi
STEPHEN M. PEZZI
Trial Attorney
United States Department of Justice
5
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