2:16-cv-01537 #63

Dkt Entry 63 – Text-Only Order, November 28, 2016

CASE MANAGEMENT ORDER No. 1: The Court having received no objections to its doing so, will by further Order set the date and time for the hearing and argument on all pending Motions for December 1, 2016 at 9:30 a.m. In light of the fact that an element in any request for the grant of preliminary injunctive relief is likelihood of success on the merits, and in light of the fact that the Defendants have moved to dismiss this action, the Court will hear argument on all motions at that time, using the following order of presentation: (1) Plaintiffs’ presentation as to the relief they seek pursuant to Fed. R. Civ. P. 65; (2) Defendants’ presentation in furtherance of their Motion to Dismiss and in opposition to the relief sought by Plaintiffs; (3) any response by Plaintiffs to #2 above; (4) Defendants’ rebuttal in support of their Motion to Dismiss. To the extent any party seeks to present further record evidence consistent with this Order or the Court’s prior Orders, it should do so in the relevant portion of their presentation. As the Court previously advised, it will permit divided argument by counsel as to issues presented, so long as the Court is so advised at the commencement of the hearing. The Court has reviewed and considered the submissions of the parties and of amici. It would observe that for the most part, the competing responses to each party’s Proposed Findings of Fact and Conclusions of Law (“FF/CL”) relate to the materiality or relevance of the proferred fact/conclusion, which will be a legal issue to be resolved by the Court. The one exception appears to relate to the Defendants’ references to a Fall 2016 McHugh/Mayer article. See, e.g. ECF No. 43 at 3. The Court is not sure what it is asked, or will be asked, to do with that information. It does not appear to come within Fed. R. Evid. 703 or 803(18), nor is it proferred in testimonial form. Further, it would appear to the Court that the corresponding FF/CL advanced by the Plaintiffs are likely material to consideration of at least the Plaintiffs’ 14th Amendment Equal Protection claims and the corresponding standard of review, even “at this stage of the proceedings”. See, id. Finally, counsel has previously advised the Court, ECF No. 44 at 1, that they have agreed that no witnesses will be called, and the Court can and should accept the affidavits/declarations submitted as representing what the affiant/declarant’s testimony would be if offered at length under oath, all of which is perfectly acceptable to the Court. The Court having reviewed the papers of record is not at this point requesting the presentation of any testimony. Should any party determine that it may seek to present further record evidence in any form, it must confer with opposing counsel in such regards not later than Noon, November 29, 2016, and file on the docket a succinct summary or listing of any such anticipated proferred evidence not later than 6:00 p.m., November 29, 2016. Signed by Judge Mark R. Hornak on 11/28/2016. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (Hornak, Mark) (Entered: 11/28/2016)