O ' T D ' A - M - E P L Case No: 4:10-cv-00257-SBA sf-2809973

Case3:10-cv-00257-JSW Document26 Filed03/02/10 Page1 of 4
1 JAMES R. McGUIRE (CA SBN 189275)

[email protected]
2 GREGORY P. DRESSER (CA SBN 136532)
[email protected]
3 RITA F. LIN (CA SBN 236220)
[email protected]
4 GRACE Y. PARK (CA SBN 239928)
[email protected]
5 MORRISON & FOERSTER LLP
425 Market Street
6 San Francisco, California 94105-2482
Telephone: 415.268.7000
7 Facsimile: 415.268.7522
8 JENNIFER C. PIZER (CA SBN 152327)
[email protected]
9 LAMBDA LEGAL, Western Regional Office
3325 Wilshire Boulevard, Suite 1300
10 Los Angeles, CA 90010-1729
Telephone: 213.382.7600
11 Facsimile: 213.351.6050
12 Attorneys for Defendant
KAREN GOLINSKI,
13
14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 OAKLAND DIVISION
17
18 KAREN GOLINSKI, Case No. 4:10-cv-00257-SBA
19 Plaintiff, PLAINTIFF’S OPPOSITION TO

DEFENDANT’S
20 v. ADMINISTRATIVE MOTION
FOR LEAVE TO FILE AN
21 UNITED STATES OFFICE OF PERSONNEL OPPOSITION BRIEF OF 36
MANAGEMENT, PAGES
22
Defendant.
23
24
25
26
27
28
OPP’N TO DEF’S ADMIN. MTN. TO EXCEED PAGE LIMIT
Case No: 4:10-cv-00257-SBA
sf-2809973
1 In direct violation of this Court’s standing order and the Local Rules of this Court, the
2 United States Office of Personnel Management (“OPM”) has filed a 36-page memorandum in
3 opposition to plaintiff Karen Golinski’s 13-page preliminary injunction motion. Plaintiff hereby
4 respectfully opposes OPM’s untimely “request” to file that memorandum. Plaintiff further
5 requests that the Court strike that opposition brief in its entirety.
6 I. Even After Plaintiff’s Counsel Cited to OPM the Civil Local Rules and This
Court’s Standing Order, OPM Filed an Oversized Brief Anyway.
7
8 The Local Rules of this Court limit opening and opposing memoranda to 25 pages each.
9 Civil L.R. 7-2, 7-3. This Court’s standing order provides a reasonable limitation on a party’s
10 ability to seek leave of court to exceed these limitations — leave must be sought and obtained 7
11 days in advance:
12 Opening and opposition briefs exceeding twenty-five (25) pages
and reply briefs exceeding fifteen (15) pages may be filed only with
13 leave of the Court seven (7) days before the filing date of the
motion.
14
15 Plaintiff served a copy of the standing order on OPM when it served the Complaint.
16 (McGuire Decl. ¶ 3.) Moreover, plaintiff’s counsel discussed the Court’s standing order with
17 OPM (in another context) as early as January 25, 2010. (Id. ¶ 4, Exh. A.)
18 Despite this, OPM waited until March 1, 2010 — the day before its opposition was due —
19 to contact plaintiff to request a “stipulation” to permit it to file an oversized brief. (Id. ¶ 5, Exh.
20 B.) Pointing out the requirements of the Court’s standing order, plaintiff’s counsel declined to so
21 stipulate for the obvious reason that the parties cannot “agree” to violate a court order. (Id. ¶ 6,
22 Exh. C.)
23 Despite its advance knowledge of these rules, OPM filed a request for leave to file an
24 oversized brief the day before it was due. Moreover, when the Court did not drop everything to
25 attend to OPM’s belated request, OPM (again) took the law into its own hands and simply
26 disobeyed the Local Rules and the Court’s standing order — without leave of Court, it simply
27 filed its oversized brief.
28
Case No. 4:10-cv-00257-SBA 1
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1 II. This Court Has the Discretion to Disregard Oversized Briefs Filed in
Violation of the Local Rules and This Court’s Standing Order.
2
3 This Court has the discretion to strike briefs filed in circumvention of the page-limit
4 requirements set forth in the local rules. Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir.
5 1996). This means that a brief may be stricken by the Court in its entirety when a party (1) has
6 not sought leave of the Court within the prescribed seven-day time limit, (2) has not received
7 leave from the Court to file an oversized brief, and (3) has nevertheless filed an oversized brief.
8 Broden v. Marin Humane Soc’y, No. C 97-0008, 1997 WL 818587, at *3 (N.D. Cal. Nov. 14,
9 1997) (SBA) (striking plaintiff’s motion for summary adjudication); Aircraft Tech. Publishers v.
10 Avantext, Inc., No. C 07-4154, 2009 WL 3833573, at *1-2 (N.D. Cal. Nov. 16, 2009) (SBA)
11 (striking plaintiff’s multiple summary judgments motions filed to circumvent page limits and
12 providing one day to file a summary judgment motion that conformed with the prescribed page
13 limits).
14 The reason for page limits is not trivial. As this Court has explained, “[j]udicial economy
15 and concise argument are purposes of the page limit.” Aircraft Tech. Publishers, 2009 WL
16 3833573, at *1 (citing Weilert v. Health Midwest Dev. Group, 95 F.Supp.2d 1190, 1192 (D. Kan.
17 2000)). OPM’s excuse for its tardiness is that the Court required it to submit an opposition on an
18 “expedited schedule” and that it lost several days to a winter storm. OPM has already had far
19 longer than ordinarily permitted under the local rules to prepare an opposition. Normally,
20 opposition briefs are due 14 days after the opening brief. See Civil L.R. 7-2 (opening brief due 35
21 days before hearing) and Civil L. R. 7-3 (opposition due 21 days before hearing). OPM has had
22 plaintiff’s opening brief for more than twice that long, since January 26, 2010. Moreover, the
23 Court entered the briefing schedule almost three weeks ago, on February 11, 2010. OPM had
24 plenty of time to raise its request earlier, particularly given the import that OPM states it has
25 placed on this case.
26 Furthermore, there is no need for an oversized brief here. The normal 25 pages should be
27 more than sufficient. Ms. Golinski’s opening brief was a mere 13 pages long, and Chief Judge
28 Kozinski’s four orders total only 27 pages combined. Moreover, many of the arguments that
Case No. 4:10-cv-00257-SBA 2
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1 OPM makes are responses to Chief Judge Kozinski’s reasoning concerning the Separation of
2 Powers doctrine. The reasoning in those orders is no longer at issue in this case. If OPM wanted
3 to challenge that reasoning, it should have appealed those orders, as it was both invited and
4 entitled to do. It did not and has hence waived any such challenge.
5 Ultimately, OPM asserts that it should receive special treatment because its opposition
6 may be its “only opportunity” to present arguments opposing the preliminary injunction, if this
7 Court decides the motion without oral argument. That is the nature of an opposition brief. The
8 Court is never obligated to consider arguments raised for the first time at oral argument, so parties
9 must always present their arguments in their briefing. See White v. FedEx Corp., C 04-99 SI,
10 2006 U.S. Dist. LEXIS 9975, 2006 WL 618591, *2 (N.D. Cal. Mar. 13, 2006) (“The Court will
11 not consider any arguments or evidence raised for the first time at the hearing.”). OPM offers no
12 reason why it faces a unique hardship in meeting the page limit here.
13 In short, OPM’s request violates the Local Rules and this Court’s order and, in any event,
14 is neither necessary nor appropriate. Ms. Golinski requests that the Court deny OPM’s request,
15 strike OPM’s Opposition brief in its entirety.1
16
17 Dated: March 2, 2010 MORRISON & FOERSTER LLP

18 LAMBDA LEGAL
19
20 By: /s/ James R. McGuire

James R. McGuire
21
Attorneys for Defendant
22 KAREN GOLINSKI
23
24
25
1
If, however, the Court were to disagree and grant OPM leave to file an oversized brief,
26 Ms. Golinski would request that she be provided with an additional week to respond to the
oversized brief and be allotted the same amount of extra space (an additional 11 pages) for her
27 reply brief, which she will endeavor not to use.
28
Case No. 4:10-cv-00257-SBA 3
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Case3:10-cv-00257-JSW Document26 Filed03/02/10 Page1 of 4

1 JAMES R. McGUIRE (CA SBN 189275)

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

18 KAREN GOLINSKI, Case No. 4:10-cv-00257-SBA

19 Plaintiff, PLAINTIFF’S OPPOSITION TO

25 placed on this case.

17 Dated: March 2, 2010 MORRISON & FOERSTER LLP

20 By: /s/ James R. McGuire

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