IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Transcription

1 Case: Document: Page: 1 Date Filed: 03/07/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Daniel J. Piszczatoski, et al., No Appellants, v. The Hon. Rudolph A. Filko, et al., Appellees. PLAINTIFFS-APPELLANTS MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF To: Marcia Waldron, Clerk United States Court of Appeals for the Third Circuit United States Courthouse 601 Market Street Philadelphia, Pennsylvania Mary Beth Wood, Esq. Office of the New Jersey Attorney General R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey PLEASE TAKE NOTICE that Plaintiffs-Appellants, by and through their undersigned counsel, respectfully move this Court pursuant to Fed. R. App. P. 27 for leave to file a supplemental brief. This motion is based on the following: 1

2 Case: Document: Page: 2 Date Filed: 03/07/ During the oral argument held on February 12, 2013, counsel for Defendants-Appellees offered to submit a supplemental brief. See Tr. p. 60: The Court granted Defendants request. See id. p. 60: Immediately afterwards, Judge Hardiman said, We d be happy to hear about that, and then, turning to Appellants-Plaintiffs counsel, he added, and an opportunity to talk. Id. p. 60: Defendants filed their supplemental brief on February 27, This supplemental brief addresses statutory history and evidence purporting to support the constitutionality of the provision at issue in this case, includes a declaration from Lt. Joseph Genova of the New Jersey State Police. This declaration presents the number of handgun carry permits have been applied for and issued under the New Jersey law at issue from the year 2000 through the year Plaintiffs filed their supplemental brief on March 4, 2013 and addressed the new issues raised by Defendants supplemental briefing. 4. Later in the day on March 4, the Clerk issued a noncompliance order directing Plaintiffs to file this motion seeking leave. By telephone the Clerk s office advised that more clarity was needed to support authorization of this brief, and that Plaintiffs ought to file this motion. 2

3 Case: Document: Page: 3 Date Filed: 03/07/ It is Plaintiffs understanding that Judge Hardiman s statement regarding an opportunity to talk was an indication that Plaintiffs would be afforded an opportunity to respond to Defendants supplemental briefing. 6. Moreover, principles of fairness dictate that Plaintiffs be afforded an opportunity to respond to new factual information particularly where the Court has already suggested that the facts might be material to its decision. 7. Counsel for Defendants declined to consent to this motion prior to the deadline for its filing, but suggested it might not be opposed. 8. Defendants counsel raised a concern that Defendants supplemental brief was allegedly only four pages, while Plaintiffs brief was ten pages. However, Defendants filing was eight pages long, considering the evidence laid out by the Genova Declaration. Plaintiffs response necessarily addressed this declaration. 9. Plaintiffs supplemental response brief is consistent with this Court s previous order regarding the length of supplemental briefs. Although the Court did not specify any page limits for this round of 3

4 Case: Document: Page: 4 Date Filed: 03/07/2013 briefing, only weeks earlier it ordered supplemental briefing limited to ten pages. 10. Plaintiffs March 4 briefing contains no material that is not directly responsive to the Court s concerns and to the Defendants February 27 arguments. The brief cannot be shortened by two pages, let alone six, without compromising Plaintiffs ability to fully inform the Court and respond to the Defendants. 11. Accordingly, Plaintiffs respectfully request that their supplemental brief of March 4, 2013 be filed. Dated: March 7, 2013 Respectfully submitted, By: s/ David D. Jensen David D. Jensen DAVID JENSEN PLLC 111 John Street, Suite 230 New York, New York ( tel ( fax david@djensenpllc.com Alan Gura Gura & Possessky, PLLC 101 N. Columbus Street, Suite 405 Alexandria, Virginia ( tel ( fax alan@gurapossessky.com Attorneys for Plaintiffs-Appellants 4

5 Case: Document: Page: 5 Date Filed: 03/07/2013 CERTIFICATE OF SERVICE I hereby certify that on March 7, 2013 I electronically filed the foregoing Motion for Leave to File a Supplemental Brief with the Clerk of the Court for the United States Court of Appeals for the Third Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/ David D. Jensen