Complaint - P l a i n t i f f s , v. U.S. DEPARTMENT OF HEALTH (2022-06-02)

Summary

Joint Unopposed Motion for a Briefing Schedule for Defendants' Motion to Dismiss, filed August 18, 2022 as Document 23 in Robert L. Apter, et al. v. U.S. Department of Health and Human Services, et al., Case No. 3:22-cv-184, U.S. District Court for the Southern District of Texas, Galveston Division, before Judge Jeffrey V. Brown. The plaintiffs sued the department, Secretary Xavier Becerra, the Food and Drug Administration and Commissioner Robert M. Califf on June 2, 2022, and filed an Amended Complaint on August 8, 2022. The parties propose that the government's motion to dismiss be due August 26, 2022, the response September 23 and the reply October 7, and ask the court to vacate the September 14, 2022 pretrial conference. The four-page motion is signed by counsel at Boyden Gray & Associates and the U.S. Department of Justice Consumer Protection Branch.

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

ROBERT L. APTER, et al.,

Plaintiffs,

v.

U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, et al.,

Defendants.

Case No. 3:22-cv-184

JUDGE JEFFREY V. BROWN
JOINT UNOPPOSED MOTION FOR A BRIEFING SCHEDULE FOR
DEFENDANTS’ MOTION TO DISMISS
The parties to this action jointly move for entry of a briefing schedule for
Defendants’ motion to dismiss. Plaintiffs filed this lawsuit on June 2, 2022,
against the U.S. Department of Health and Human Services, Xavier Becerra in his
official capacity as Secretary of Health and Human Services, the U.S. Food and
Drug Administration, and Robert M. Califf in his official capacity as
Commissioner of Food and Drugs. ECF No. 1. On August 2, 2022, pursuant to
Rule 6 of the Rules of Practice of the Galveston Division of the U.S. District Court
for the Southern District of Texas, Defendants’ counsel sent Plaintiffs’ counsel a
letter stating the bases for their intended motion to dismiss and informing
Plaintiffs of their right to amend their Complaint within 14 days. On August 4,
2022, the parties met and conferred regarding Defendants’ intended motion to
dismiss. On August 8, 2022, Plaintiffs filed their Amended Complaint. ECF No.
12.
Case 3:22-cv-00184   Document 23   Filed on 08/18/22 in TXSD   Page 1 of 4

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Defendants intend to file a motion to dismiss the Amended Complaint. That
motion would normally be due August 22, 2022. See Fed. R. Civ. P. 15(a)(3).
However, to avoid scheduling conflicts and ensure adequate time to brief the
issues in this case, the parties have agreed to the following briefing schedule for
Defendants’ motion to dismiss:
Defendants’ Motion to Dismiss due:
August 26, 2022
Plaintiffs’ Response due:

September 23, 2022
Defendants’ Reply due:

October 7, 2022
These dates represent a 4-day extension for the Motion to Dismiss, a 7-day
extension for the Response, and a 7-day extension for the Reply.
The parties jointly move for the Court to enter the above briefing schedule
and to vacate the Initial Pretrial and Scheduling Conference scheduled for
September 14, 2022, at 9:00 a.m., ECF No. 7, pending the Court’s resolution of
Defendants’ motion to dismiss.

August 18, 2022
Respectfully submitted,
/s/ R. Trent McCotter
R. Trent McCotter
 Attorney-In-Charge
 So. Dist. No. 3712529
 N.C. Bar No. 43045
Jared M. Kelson (pro hac vice)
 D.C. Bar No. 241393
Boyden Gray & Associates
801 17th St. NW, #350
Washington, DC 20006
(202) 706-5488
mccotter@boydengrayassociates.com

Counsel for Plaintiffs
/s/ Isaac C. Belfer
Isaac C. Belfer
 Attorney-In-Charge
 D.C. Bar No. 1014909
Oliver McDonald
 Of Counsel
 N.Y. Bar No. 5416789
Trial Attorneys
Consumer Protection Branch
Civil Division
U.S. Department of Justice
PO Box 386
Washington, DC  20044-0386
(202) 305-7134 (Belfer)
(202) 305-0168 (McDonald)
Case 3:22-cv-00184   Document 23   Filed on 08/18/22 in TXSD   Page 2 of 4

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(202) 514-8742 (fax)
Isaac.C.Belfer@usdoj.gov
Oliver.J.McDonald@usdoj.gov

Counsel for Defendants
Case 3:22-cv-00184   Document 23   Filed on 08/18/22 in TXSD   Page 3 of 4

CERTIFICATE OF SERVICE
I hereby certify that this document, filed through the CM/ECF system, will
be sent via electronic mail to the registered participants as identified on the
Notice of Electronic Filing.

August 18, 2022

/s/ Isaac C. Belfer

Isaac C. Belfer

Case 3:22-cv-00184   Document 23   Filed on 08/18/22 in TXSD   Page 4 of 4

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