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Glass half full?; grounds for cautious optimism
Topic Started: Oct 29 2010, 02:30 AM (752 Views)
Jack_Webb

I have been thinking lately about how the civil suits are (not) proceeding, and I take some consolation in the following thought:

Clearly, Judge Beatty is on the side of the defendants. I don't think we can even argue that point anymore, not after he allowed Nifong's bankruptcy case to stall the suits for a year. Let me just paraphrase that compelling legal argument for you:

Let's say you have a net worth of $100 and owe a creditor $90. The creditor comes to collect, and you tell her, "But after I pay you your $90, I won't have $90 left to pay you, so I can't pay you, so I'm not going to."

Huh?

Unless Judge Beatty is an utter imbecile, which he is not, he could not fail to see through that argument -- unless he really didn't want to. So we know where he stands.

If he thought he could rule against the plaintiffs on any substantial point of law and get away with it, clearly, he would. That he hasn't -- that he is just stalling like tobacco lawyers used to waiting for the lung cancer patients suing them to die off -- means that's the best he can do to kill the case.

That seems to me a tacit admission that the plaintiff's case is open and shut, and if he's ever compelled to rule on anything, he will be obliged to rule for the plaintiffs.

Perhaps this is cold comfort. After all, this case really opened my eyes to how things really work in our justice system, and a few years ago I would have trusted a judge to rule on the cases before him instead of waiting for the Grim Reaper to overtake enough of the parties to the suit that the issue would become moot. Heck, when this case was assigned to Beatty, I thought the federal courts were different than the NC courts, where Orlando Hudson can decline to act on a valid petition before him without fear of consequence -- or even of anyone pointing out he's breaking the law. In a courtroom. In HIS courtroom.

Now I know better. Shall we look at the actuarial tables and start a "dead pool" on how many of the defendants won't be alive to be interviewed in discovery, when it comes around, which it one day will.

If so, I call Burness first. He's just one jelly doughnut away.
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abb
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Don't forget Travis Mangum and Wes Covington. They're already dead.
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Quasimodo

In the meantime, the reputations of the players continue to suffer.

How many people have read UPI? Not many.

"Duke lacrosse" on a resume still might give an employer a pause. (And an employer has to consider
whether adding the controversy is worth it.)

The longer Judge Beaty stalls the truth, the more the injury to the players. The longer
their families have to live with this. The longer there is no closure.

The defendants by their stalling--with IMHO Judge Beaty's
cooperation--are only increasing the injury done to the plaintiffs.

"Justice delayed is justice denied." Empty words?

The first Rule of Civil Procedure says the rules are to be 'construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.'

These cases in the ordinary run of affairs ought not to have lasted more than three years. They ought
to have been concluded by now. Instead, they have not even begun. And Judge Beaty is the sole
cause for that, as barring his direct intervention and use of his discretionary powers, Discovery would have begun in 2008.

As far as I'm concerned, he has further damaged the players and permits prior damage to continue.






Edited by Quasimodo, Oct 29 2010, 09:28 AM.
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Quasimodo

Quote:
 
This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, “Suffer any wrong that can be done you rather than come here!"

--Dickens, Bleak House
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Quasimodo

Quote:
 
The litigation manual: trial By John G. Koeltl, John S. Kiernan, American Bar Association. Section of Litigation pp. 120-121 :

Follow the general standard: “Is the material sought likely to lead to the discovery
of relevant or admissible evidence?”

(snip)

Considerations of costs and burdens usually give way if such objections interfere with
the fair, impartial, and thorough administration of justice
. Even heavy expenditures in money
and time will not necessarily deter discovery.


How much have the DEFENDANTS, who were supposedly to be the beneficiaries of Judge Beaty's
delay of discovery, spent because the case had continued for three years without any decisions?

From pure cost alone to them alone, wouldn't it have been better to have held discovery and then proceeded with
the case?

(After all, they are asserting their innocence; what would they have to fear from an airing of the issues in open court?)
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Quasimodo

Quote:
 
http://info.libraries.vermont.gov/SUPCT/157/op90-551.txt

Discovery is one of the most important legal tools available in the
search for truth, the fundamental purpose of litigation. It allows parties
to acquire the fullest knowledge of relevant facts so that cases are decided
"by what the facts reveal, not by what facts are concealed." Jampole v.
Touchy, 673 S.W.2d 569, 573 (Tex. 1984). Accordingly, discovery should not
be cut off until the parties have had an ample opportunity to uncover
relevant facts. . .


Indeed, a great majority of both state and federal judges
indicated in a recent Harris poll that abuse of discovery is the most
important cause of delay and excessive expense in litigation. Harris,
Judges' Opinions on Procedural Issues: A Survey of State and Federal Trial
Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U.L.
Rev. 731, 733 (1989).Because the incentive for lawyers and their clients
is often to further rather than minimize delay,
see Rosenberg & King,
Curbing Discovery Abuse in Civil Litigation: Enough is Enough, 1981 B.Y.U.
L. Rev. 579, 589, the courts must utilize their power under Rule 26(b) to
ensure that the process is not being abused.


(snip)

Our rules require that a litigant have a good faith, and reasonably
supported, belief that his or her claim has merit and that the requests for
discovery are not interposed to harass or to cause unnecessary delay or
expense.
See V.R.C.P. 11; V.R.C.P. 26(g). Thus, the purpose of discovery
is not to fish through every potential theory of recovery to determine if
there is any factual support for the theory. See Segan v. Dreyfus Corp.,
513 F.2d 695, 696 (2d Cir. 1975); cf. Perkins v. General Motors Corp., 129
F.R.D. 655, 662 (W.D. Mo. 1990) (sanctions imposed under Rule 26(g) where
plaintiff and her attorney failed to conduct an objectively reasonable
inquiry into allegations made in interrogatory answers, which were
interposed to harass defendant and to increase the cost of litigation). Nor
is it the purpose to change the economics of litigation so that the litigant
with the deepest pocket or the most perseverance will prevail in the end.


Edited by Quasimodo, Oct 29 2010, 01:34 PM.
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Quasimodo

Quote:
 

http://scholar.google.com/scholar_case?case=1478258294710833258&hl=en&as_sdt=802&as_vis=1
568 F.2d 89 (1977)
Dicky D. VOEGELI and Sharon Voegeli, Appellants,
v.
Harvard R. LEWIS and Methodist Hospital, a corporation, Appellees.

No. 76-1690.
United States Court of Appeals, Eighth Circuit.

Submitted February 18, 1977.
Decided December 30, 1977.

A district court has very wide discretion in handling pretrial discovery and we are most unlikely to fault its judgment unless, in the totality of the circumstances, its rulings are seen to be a gross abuse of discretion resulting in fundamental unfairness in the trial of the case. See Sanden v. Mayo Clinic, supra, 495 F.2d at 228; 8 C. Wright & A. Miller, Federal Practice and Procedure § 2006, at 35 (1970). See also Scroggins v. Air Cargo, Inc., 534 F.2d 1124, 1133 (5th Cir. 1976); Lewis v. Texaco, Inc., 527 F.2d 921, 926 (2nd Cir. 1975). While the District Court may not be held to have foreseen the result in this case, we think such unfairness did result. The District Court advanced no reason for its failure to enforce the original order compelling answers to appellants' interrogatories. Appellants clearly had the right to propound and have these interrogatories answered.

Permitting appellants to take Dr. Gross' deposition can hardly be called a sanction;
the cost of taking it was never assessed against the appellee. The answers given by appellee Lewis were woefully short of the candor expected for compliance with Rule 26.



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Quasimodo




-----------------------------------


"Passing judgment on the motion is a part of the judicial function that the judge should not escape; judicial inaction is not within the judge’s discretion."


------------------------------

A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition. State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000).

http://www.ncpa.ne.gov/ctopinio/S99-1283.htm

----------------------------


http://www.ilawdictionary.com/California_Law_Dictionary_Vol_0000_Ch_0001_Sec_0000_Par_0000_Judges_Judicial_Discretion_Hernandez_v_Superior_Court_Neal.htm


Judges-Abuse of Judicial Discretion
Hernandez v. Superior Court (Neal)


Abuse of Discretion as a Matter of Law

(snip)

" ' "The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just {Slip Opn. Page 4} decisions." [Fn. [omitted.]' (In re Cortez (1971) 6 Cal.3d 78, 85-86 [98 Cal.Rptr. 307, 490 P.2d 819]; see also In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200 [280 Cal.Rptr. 565].) 'The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason.' (Shamblin v. Brattain (1988) 44 Cal.3d474, 478 [243 Cal.Rptr. 902, 749 P.2d 339]; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [27 Cal.Rptr.2d 595, 867 P.2d 706].) " (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449.)

The trial court has discretion in ruling on requests to extend discovery deadlines or continue trial dates. Equally clear are the trial court's statutory obligations to enforce discovery cutoff dates and to set firm trial dates. (Code Civ. Proc., §§ 2024, 2034; Gov. Code § 68607, subd. (e)-(g); Cal. Stds. Jud. Admin., § 9.) Strict adherence to these delay reduction standards has dramatically reduced trial court backlogs and increased the likelihood that matters will be disposed of efficiently, to the benefit of every litigant. (See, e.g., Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105.) Here, the trial court's orders promote judicial efficiency by maintaining strict time deadlines.

But efficiency is not an end in itself. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085; Gov. Code, § 68507; Cal. Stds. Jud. Admin., § 2.) Accordingly, decisions about whether to grant a continuance or extend discovery "must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency." (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398-399.)
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Quasimodo

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID F. EVANS, et al.,

Plaintiffs,

v. 1:07CV739

THE CITY OF DURHAM,
NORTH CAROLINA, et al.,
Defendants.
ORDER

(snip)

Under these circumstances, the Court concludes that further discovery should proceed only after the pending Motions to Dismiss are resolved. To the extent Plaintiffs raise general concerns regarding possible loss or destruction of evidence, the Court notes that Defendants have an ongoing duty to preserve potentially relevant evidence, and the Court of Appeals for the Fourth Circuit has made clear that “when a proponent’s intentional [but not necessarily bad faith] conduct contributes to the loss or destruction of evidence, the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct. [The court may, inter alia,] permit the jury to draw unfavorable inferences against the party responsible for the loss or destruction of the original evidence.” Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008) (alterations in original) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)). Thus, Defendants in this case are already under a legal duty to preserve any potentially relevant evidence, and this Court can appropriately address if necessary any potential loss or destruction of such evidence. In light of these existing duties and remedies, and in the interests of efficiency and sound judicial case management, the Court in its discretion will deny Plaintiffs’ Motion to Compel Defendants to Confer Under Rule 26(f) [Document #67] at this time, and as a result, additional discovery will proceed only after the Motions to Dismiss are resolved and Answers have been filed.

[So he added the "but not necessarily bad faith" insertion?]

IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel Defendants to
Confer Under Rule 26(f) [Document #67] is DENIED.

This, the 12th day of November, 2008.

[OK, if I buy the arguments above, then where is the decision on the motions to dismiss?
TWO YEARS and we are still waiting? (Sorry, I forgot that Nifong's bankruptcy intervened.)
THREE YEARS from the start of the first of these cases, and we don't even have
decisions on whether or not even the first of these cases can proceed?

If he anticipated a stall of two more years before he could decide whether to dismiss,
isn't he subjecting both plaintiffs and defendants to unreasonable expenditures
and delays which do nothing to "promote the case on the merits"?]


United States District Judge



- - - - - -
http://docs.justia.com/cases/federal/district-courts/north-carolina/ncmdce/1:2007cv00739/46882/82/
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Quasimodo

http://www.leagle.com/xmlResult.aspx?xmldoc=in%20wyco%2020100914a51.xml&docbase=cslwar3-2007-curr
DOLLARHIDE v. BANCROFT
2010 WY 126
JACK DOLLARHIDE, Appellant (Plaintiff),
v.
SCOTT BANCROFT, MURRAY SHATTUCK, and MICHAEL JOHNSON, Appellees (Defendants).
No. S-10-0023.
Supreme Court of Wyoming. APRIL TERM, A.D. 2010.
September 14, 2010.


""Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.`"

[Was it capricious or arbitrary for a court which as disallowed Discovery on the basis of "judicial economy" to turn around and accept in good faith Nifong's claim of $180 million in debt, and permit
the court's proceedings to be delayed on that account?]


(snip)

It has been said that "fraud on the court" occurs "where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system`s ability to impartially adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party`s claim or defense." Aoude v. Mobil Oil Corp.,892 F.2d 1115, 1118 (1st Cir. 1989).

[How about stalling the proceedings with ludicrous claims, during which time important witnesses die?]



Courts are vested with very great and far-reaching power to control their business and proceedings and to enforce their orders and process in conducting the business of a court. [And why?]
Courts must have these very great powers to ensure civility, orderly procedure, respect for the court as an institution and for its orders, and in the end an honest development of the facts of a controversy that will end in a just result.

[How does precluding discovery lead to "an honest development of the facts of the controversy"?

Was it ever the intent of the presiding judge that there should be discovery? If not, how does that
lead to "an honest development of the facts of the controversy"?]


Stated as a positive, the proper exercise of discretion means doing something that is reasonable under the circumstances.

[Was accepting Nifong's bankruptcy claim of $180 million in debt a reasonable reason to stall the cases under the circumstances?]

(JMOO. for discussion purposes only)
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Quasimodo

http://www.ndcourts.com/court/opinions/920254.htm

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Todd A. Fisher, Plaintiff and Appellee
v.
Dale Lyle Johnson, et. al., Defendant

(1993)

"A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner."

[See above. This seems to be the standard. Has Beaty acted in an arbitrary and unreasonable manner
in stalling discovery for the sake of "judicial economy" while permitting a ludicrous claim by Nifong
that he was in debt for $180 million--despite claiming at the same time that he did not owe such a sum
and was immune to judgment?

If Nifong's intent was to delay the lax suits, and if his claim was made with that obvious intention,
and/or if it was based on such absurd declarations--then wasn't the judge acting in an arbitrary,
unreasonable, and biased manner to go along with it and permit the court's proceedings to
be delayed?]


(JMOO. for discussion purposes only)
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Quasimodo

Quote:
 
http://caselaw.findlaw.com/wa-supreme-court/1151655.html


¶ 6 “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).

The people have a right of access to courts; indeed, it is “the bedrock foundation upon which rest all the people's rights and obligations.” John Doe v. Puget Sound Blood Ctr., 117 Wash.2d 772, 780, 819 P.2d 370 (1991).

This right of access to courts “includes the right of discovery authorized by the civil rules.”
Id. As we have said before, “t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense.” Id. at 782, 819 P.2d 370.


To what extent have the plaintiffs effectively been denied access to the courts?

To what extent has this denial over the past three years prejudiced their cases?

To what extent was this denial extensive (there are many persons to be deposed),
lengthy (two witnesses have died) and prejudicial to their pursuing their claims?



Quote:
 
http://openjurist.org/119/f3d/1259/swekel-v-city-of-river-rouge

Swekel alleges that the police covered-up proof against one of their own, destroyed critical evidence, and delayed Swekel's own investigation. These allegations, if true, would substantially prejudice Swekel's ability to recover in state court. Delay alone causes "stale evidence and the fading of material facts in the minds of potential witnesses." Ryland, 708 F.2d at 975; see also Rheuark v. Shaw, 628 F.2d 297, 303-04 n. 10 (5th Cir.1980) (citation omitted) ("Delay haunts the administration of justice.... The most erratic gear in the justice machinery is at the place of fact finding, and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination."), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981).
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sceptical

Judge Beaty has had all the motions and replies since May 4. Next Thursday, November 4, marks six full months that the judge has sat on this case.

Do either the plaintiffs (or the defendants) have any remedy for unreasonable judicial delay?
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MikeZPU

IMHO I also felt that the solicitation of responses relative to the relevance of
the Ashcroft vs lqbal ruling by SCOTUS was also just another delay tactic.

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sdsgo

Ashcroft v. Iqbal profoundly changed the basic rules of the game. Hundreds, if not thousands, of motions just like the ones below were filed in cases all across the country. Judge Beaty would have committed reversible error had he not allowed the parties to submit additional briefs.

Just like Potti’s research, the basic premise of this thread is flawed. Judge Beaty has been absolutely fair to both sides. You point to the judge’s November 12, 2008 ruling to delay discovery until the Rule 12(b)(6) motions were decided as some great injustice, but you fail to put the decision in context. Ask yourself, what was the status of the pleadings at that time, and when would he have expected to rule on the motions? Take a good look at the three case dockets. Do you not see motions by both plaintiffs and defendants? Do you not see both sides try to take advantage of recent high court rulings?


IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA


CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
____________________________________
Suggestion of Subsequently Decided Authority

Pursuant to Local Rule 7.3(i), the Duke University Defendants, Duke SANE Defendants, and Duke Police Defendants respectfully submit this suggestion of subsequently decided authority, without argument, to supplement their motions to dismiss in the above-captioned case. A copy of the United States Supreme Court’s decision in Ashcroft v. Iqbal (No. 07-1015) is attached hereto as Exhibit 1.


IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA


CIVIL ACTION NUMBER 1:08-CV-00119
EDWARD CARRINGTON, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
____________________________________
Suggestion of Subsequently Decided Authority

Pursuant to Local Rule 7.3(i), the Duke University Defendants and Duke SANE Defendants respectfully submit this suggestion of subsequently decided authority, without argument, to supplement their motions to dismiss in the above-captioned case. A copy of the United States Supreme Court’s decision in Ashcroft v. Iqbal (No. 07-1015) is attached hereto as Exhibit 1.


IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID F. EVANS, et al., )
)
Plaintiffs, )
)
v. ) 1:07CV739
)
THE CITY OF DURHAM,)
NORTH CAROLINA, et al.)
)
Defendants.)

ORDER

This matter is before the Court on Motions to Dismiss [designated as Doc. #42] by the various Defendants in this case seeking to dismiss the claims asserted against them by Plaintiffs David F. Evans (“Evans”), Collin Finnerty (“Finnerty”), and Reade Seligmann (“Seligmann”). In two other cases in this District that have been identified by the parties and the Clerk’s Office as “related” to the present case, Carrington, et al. v. Duke University, et al. (1:08CV119) and McFadyen, et al. v. Duke University, et al. (1:07CV953), certain of the Defendants have filed a Suggestion of Subsequently Decided Authority, citing the recent decision of the United States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (May 18, 2009). Having reviewed this matter, the Court concludes that the parties should be given the opportunity to address the effect of the decision in Iqbal on the resolution of the Motions to Dismiss in the present case. As such, within 20 days of the date of this Order, any of the previously-designated Defendant groups may file a Supplemental Brief, not to exceed 20 pages, addressing the impact of the Supreme Court’s decision in Iqbal on the resolution of the pending Motions to Dismiss. The Supplemental Briefs should be filed jointly to the extent possible. Within 20 days after such Supplemental Briefs are filed, Plaintiffs may file a Response Brief, not to exceed 20 pages, responding to any issues raised in the Supplemental Briefs. The Court will consider the Supplemental Briefs and the Response Brief in resolving the pending Motions to Dismiss.

IT IS THEREFORE ORDERED that within 20 days of the date of this Order, any of the previously-designated Defendant groups may file a Supplemental Brief, not to exceed 20 pages, addressing the impact of the Supreme Court’s decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), on the resolution of the pending motions to Dismiss in this case. IT IS FURTHER ORDERED that within 20 days after such Supplemental Briefs are filed, Plaintiffs may file a Response Brief, not to exceed 20 pages, responding to any issues raised in the Supplemental Briefs.

This, the 4th day of June, 2009.
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