Case: Tummino v. Von Eschenbach

1:05-cv-00366 | U.S. District Court for the Eastern District of New York

Filed Date: Jan. 21, 2005

Closed Date: April 5, 2013

Clearinghouse coding complete

Case Summary

This is a case about the Food and Drug Administration’s rules surrounding access to Plan B emergency contraceptives (“ECs”). On January 21, 2005, the plaintiffs—including numerous individual members of the Morning-After-Pill (“MAP”) Conspiracy, a non-profit coalition of feminist organizations leading grassroots efforts to ensure that ECs are available over-the-counter (“OTC”)—sued the FDA in the Eastern District of New York. Represented by the Center for Reproductive Rights, they requested decl…

This is a case about the Food and Drug Administration’s rules surrounding access to Plan B emergency contraceptives (“ECs”). On January 21, 2005, the plaintiffs—including numerous individual members of the Morning-After-Pill (“MAP”) Conspiracy, a non-profit coalition of feminist organizations leading grassroots efforts to ensure that ECs are available over-the-counter (“OTC”)—sued the FDA in the Eastern District of New York. Represented by the Center for Reproductive Rights, they requested declaratory relief and an injunction requiring the FDA to approve ECs for OTC use.

The plaintiffs claimed that requiring ECs be available by prescription only was arbitrary and capricious and exceeded statutory authority, and that such restrictions violated EC users’ constitutional right to privacy and constituted discrimination on the basis of sex. The case was assigned to Judge Charles P. Sifton due to its ostensible relation to another case on Judge Sifton’s docket, Benten v. Kessler. This relation was successfully challenged by the defendants, however, and the case was randomly reassigned to Judge Edward R. Korman.

The plaintiffs filed an amended complaint in February 2005. The FDA initially moved to dismiss the case, but Judge Korman granted the FDA’s request to withdraw the motion to dismiss without prejudice on August 2, 2005. The FDA again moved to dismiss the following month. The plaintiffs filed a second amended complaint in early December 2005, which added an additional cause of action under the APA. They argued that the FDA’s failure to approve the switch to OTC unlawfully withheld EC contrary to the underlying statute.

The parties continued with discovery, and the plaintiffs filed a third amended complaint in January 2006. In March 2006, the state of Wisconsin filed a motion to intervene in the lawsuit, though this motion was eventually terminated the following month. A fourth amended complaint was filed on August 1, 2006, and a fifth in October. The fifth amended complaint claimed that the FDA’s more recent policy regarding EC—established in July 2006—wherein EC would be available behind the counter without the need for a prescription to certain persons over the age of 18, violated the APA and constitution in the same manner as the old policy.

Discovery continued, and the plaintiffs moved for summary judgment on March 31, 2007. In May 2007, the FDA filed a motion to dismiss the suit for lack of jurisdiction. On March 23, 2009, Judge Korman denied the FDA’s motion to dismiss and granted the plaintiffs’ motion for summary judgment, holding that the FDA’s treatment of EC was arbitrary and capricious, as they “repeatedly and unreasonably delayed issuing a decision on Plan B for suspect reasons.” 603 F.Supp.2d 519.

On April 22, 2009, the FDA announced that it would allow Plan B’s manufacturers to make EC available without a prescription to 17-year-olds. In mid-2009, three organizations—Concerned Women for America (“CWA”), Christian Medical & Dental Associations (“CMDA”), and Christian Pharmacists Fellowship International (“CPFI”)—moved to intervene in the case and asked the court for leave to appeal the court’s judgment. On October 27, 2009, Judge Korman denied both motions and the parties agreed to the voluntary dismissal of the appeal with prejudice in February 2010.

Due to a dispute regarding the FDA’s treatment of another form of EC, the plaintiffs moved to reopen the case in February 2012 and requested a preliminary injunction and summary judgment. In April 2013, Judge Korman again held the FDA’s actions to be arbitrary and capricious and granted summary judgment to the plaintiffs. 936 F.Supp.2d 162.

The FDA eventually decided to make EC available OTC without any age or point of sale restrictions. As they were then in compliance with Judge Korman’s order, the FDA declined to pursue an appeal. The case is now closed.

Summary Authors

Jane Fisher (4/22/2022)

Documents in the Clearinghouse

Document
1

1:05-cv-00366

Complaint

Tummino v. Crawford

Jan. 21, 2005

Jan. 21, 2005

Complaint
71

1:05-cv-00366

Second Amended Complaint

Dec. 7, 2005

Dec. 7, 2005

Complaint
207

1:05-cv-00366

Fifth Amended Complaint

Oct. 10, 2006

Oct. 10, 2006

Complaint
282

1:05-cv-00366

Memorandum & Order

Tummino v. Torti

603 F.Supp.2d 519

March 23, 2009

March 23, 2009

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/4318851/tummino-v-von-eschenbach/

Last updated Aug. 10, 2022, 3:19 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against Lester M. Crawford filing fee $ 150, receipt number 304867, filed by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Association of Reproductive Health Professionals, National Latina Insitute for Reproductive Health, Annie Tummino, Erin T. Mahoney, Carol Giardina. (Attachments: # 1 Civil Cover Sheet)(Villanueva, William) Modified on 1/31/2005 (Villanueva, William). (Entered: 01/31/2005)

Jan. 21, 2005

Jan. 21, 2005

Clearinghouse

Summons Issued as to Lester M. Crawford. (Villanueva, William)

Jan. 21, 2005

Jan. 21, 2005

PACER
2

Letter from F. Franklin Amanat, Assistant United States Attorney EDNY, to Judge Sifton Regarding defendant's request that the Court cancel the plaintiff's designation of this case as related to Benten v. Kessler and return the complaint to the Clerk of the Court for random reassignment. (Amanat, F.) (Entered: 02/03/2005)

Feb. 3, 2005

Feb. 3, 2005

PACER
3

Letter from Simon Heller to Judge Sifton Regarding Plaintiffs' response to Defendant's request that the Court cancel the plaintiff's designation of this case as related to Benten v. Kessler, 92-CV-3161. (Strauss, Nan) (Entered: 02/07/2005)

Feb. 7, 2005

Feb. 7, 2005

PACER
5

MOTION for Limited Admission Andrea Costello by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Annie Tummino, Erin T. Mahoney, Carol Giardina. (Piper, Francine) (Entered: 02/18/2005)

Feb. 7, 2005

Feb. 7, 2005

PACER

Case reassigned to Judge Edward R. Korman. Judge Charles P. Sifton no longer assigned to the case. (Brown, Marc)

Feb. 11, 2005

Feb. 11, 2005

PACER
4

ORDER deft's motion for random reassigment is GRANTED.. Signed by Judge Charles P. Sifton on 2/9/05. (Jackson, Ramona) (Entered: 02/11/2005)

Feb. 11, 2005

Feb. 11, 2005

PACER
6

ORDER granting 5 Motion for Andrea Costello to Appear Pro Hac Vice. (Signed by JudgeEdward R. Korman on 2/14/05) (Piper, Francine) (Entered: 02/18/2005)

Feb. 18, 2005

Feb. 18, 2005

PACER

ECF registration forms have been mailed to Andrea Costello, so that all filings may be made electronically. All actions before this Court are ECF matters. It is MANDATORY that you file all original documents electronically. Please refer to the Judge's Individual Rules. From this point forward, original documents are REQUIRED to be filed electronically and forward a hard copy, labeled courtesy copy, to chambers. The Judges' Individual Rules of Chambers and further information on ECF may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov.. (Piper, Francine)

Feb. 22, 2005

Feb. 22, 2005

PACER
7

AMENDED COMPLAINT against all defendants, filed by all plaintiffs.(Strauss, Nan) (Entered: 02/24/2005)

Feb. 24, 2005

Feb. 24, 2005

PACER
110

MOTION for Leave to Appear Pro Hac Vice (Attorney - Nelle R. Rohlich) by State of Wisconsin. (Piper, Francine) (Entered: 03/22/2006)

March 15, 2005

March 15, 2005

PACER
8

First MOTION for Leave to Appear Pro Hac Vice by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Annie Tummino, Erin T. Mahoney, Carol Giardina. (Costello, Andrea) (Entered: 03/21/2005)

March 21, 2005

March 21, 2005

PACER
9

MOTION for Leave to Appear Pro Hac Vice Affidavit of Shelbi Day in Support of Motion by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Annie Tummino, Erin T. Mahoney, Carol Giardina. (Costello, Andrea) (Entered: 03/21/2005)

March 21, 2005

March 21, 2005

PACER
10

MOTION for Leave to Appear Pro Hac Vice Admission to Practice Pro Hac Vice (Proposed Order) by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Annie Tummino, Erin T. Mahoney, Carol Giardina. (Costello, Andrea) (Entered: 03/21/2005)

March 21, 2005

March 21, 2005

PACER
11

STIPULATION and proposed Order extending the time for defendant Lester M. Crawford to answer or otherwise move with respect to the complaint to and including April 18, 2005, by Lester M. Crawford. (Amanat, F.) (Entered: 03/23/2005)

March 23, 2005

March 23, 2005

PACER

ORDER, by electronic endorsement, granting 8 Motion for Leave to Appear pro hac vice, effective upon payment of the applicable fee to the clerk of the court. Entered by JudgeViktor V. Pohorelsky on 3/24/2005. (Pohorelsky, Viktor)

March 24, 2005

March 24, 2005

PACER

ORDER re 11 Stipulation filed by Lester M. Crawford, by electronic endorsement: the stipulation is so ordered. Entered by Judge Viktor V. Pohorelsky on 3/30/2005. (Pohorelsky, Viktor)

March 30, 2005

March 30, 2005

PACER
12

STIPULATION that the time for deft. Lester M. Crawford to answer the complaint is extended to 4/18/05. Signed by Judge Edward R. Korman on 3/29/05. (Greene, Donna) (Entered: 04/07/2005)

April 6, 2005

April 6, 2005

PACER
13

ORDER, the Motion for Admission Pro Hac Vice of Shelbi Day is granted. (Signed by Judge Edward R. Korman on 4/1/05) Filing Fee Paid, $25.00. Receipt #307721. (Piper, Francine) (Entered: 04/07/2005)

April 7, 2005

April 7, 2005

PACER
14

Letter from Counsel for Plaintiffs to Judge Korman Regarding Revised Briefing Schedule as Agreed to by All Parties. (Strauss, Nan) (Entered: 05/31/2005)

May 31, 2005

May 31, 2005

PACER
15

SCHEDULING ORDER: Initial Conference set for 7/14/2005 11:00 AM before Magistrate-Judge Viktor V. Pohorelsky. See annexed order for details. Ordered by Judge Viktor V. Pohorelsky on 6/13/05. (Newton, Joan) (Entered: 06/14/2005)

June 14, 2005

June 14, 2005

PACER
16

CERTIFICATE OF SERVICE by Annie Tummino et al., regarding Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Amended Complaint (Strauss, Nan) (Entered: 06/14/2005)

June 14, 2005

June 14, 2005

PACER
17

Letter from F. Franklin Amanat, Assistant United States Attorney EDNY, to Hon. Edward R. Korman, Chief United States District Judge, Regarding defendant's unopposed request for a four-week extension of time, until August 5, 2005, to file the Notice of Motion to Dismiss the Amended Complaint, with the corresponding briefing bundle, and to serve on the plaintiffs the reply brief in support of the motion to dismiss. (Amanat, F.) (Entered: 07/05/2005)

July 5, 2005

July 5, 2005

PACER

Email Notification Test - DO NOT REPLY (Lee, Tiffeny)

July 6, 2005

July 6, 2005

PACER
18

CERTIFICATE OF SERVICE by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Association of Reproductive Health Professionals, National Latina Insitute for Reproductive Health, Annie Tummino, Erin T. Mahoney, Carol Giardina for Plaintiffs' Initial Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1) (Costello, Andrea) (Entered: 07/07/2005)

July 7, 2005

July 7, 2005

PACER
19

ORDER that the conference scheduled for 7/14/05 has been rescheduled to 8/9/05 at 11:00 before Mag. Pohorelsky. Ordered by Judge Viktor V. Pohorelsky on 6/30/05. (Greene, Donna) (Entered: 07/08/2005)

July 8, 2005

July 8, 2005

PACER
20

Letter from F. Franklin Amanat, AUSA EDNY, to Hon. Edward R. Korman, Chief USDJ EDNY, Regarding defendant's request that, in view of supervening events, (1) it be allowed to withdraw its intended motion to dismiss, without prejudice to its subsequent renewal, (2) the Court schedule a status conference on or after 9/6/05, and (3) the defendant's deadline for answering the complaint and filing the administrative record, or alternatively for serving a dispositive motion, be extended to a date to be set at the status conference. (Amanat, F.) (Entered: 07/25/2005)

July 25, 2005

July 25, 2005

PACER
21

Letter MOTION to Adjourn Conference scheduled for August 9, 2005, at 11:00 a.m., without date, by way of letter from F. Franklin Amanat, AUSA EDNY, to Hon. Viktor V. Pohorelsky, USMJ, EDNY, by Lester M. Crawford. (Amanat, F.) (Entered: 07/25/2005)

July 25, 2005

July 25, 2005

PACER
22

Letter from Simon Heller to Chief Judge Korman Regarding Defendant's Letter Requesting Stay of Proceedings. (Strauss, Nan) (Entered: 07/28/2005)

July 28, 2005

July 28, 2005

PACER
23

Letter from Simon Heller to Magistrate Judge Pohorelsky Regarding Defendant's Request to Cancel Initial Conference. (Attachments: # 1)(Strauss, Nan) (Entered: 07/28/2005)

July 28, 2005

July 28, 2005

PACER
24

ORDER granting 21 Motion to Adjourn Conference. See order for details. Ordered by JudgeViktor V. Pohorelsky on 8/1/2005. (Pohorelsky, Viktor) (Entered: 08/01/2005)

Aug. 1, 2005

Aug. 1, 2005

PACER
25

ORDER endorsed on letter dated 7/25/05 from AUSA Amanat to Judge Korman: The motion to dismiss is withdrawn without prejudice. The US Magistrate is requested to hold a status conference. Ordered by Judge Edward R. Korman on 7/25/05. (Chee, Alvin) (Entered: 08/02/2005)

Aug. 2, 2005

Aug. 2, 2005

PACER

SCHEDULING ORDER: Status Conference set for Thursday, September 8,2005 at 12:00 PM before Magistrate-Judge Viktor V. Pohorelsky. All counsel are directed to report to Room 521 at the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York. Counsel for all parties must attend. Requests for adjournments must be made in writing on notice to opposing parties. No request for adjournment will be considered unless made at least forty-eight (48) hours before the scheduled conference. Ordered by Judge Viktor V. Pohorelsky on 8/2/05(Newton, Joan) (Entered: 08/02/2005)(Newton, Joan). (Newton, Joan) (Entered: 08/02/2005)

Aug. 2, 2005

Aug. 2, 2005

PACER
26

ORDER: A telephone status conference was held on 8/2/05. Accordingly, my order dated 7/25/05 is vacated. The US Attorney is to file an answer to the complaint by 8/5/05. The US Attorney is also to file an itemization of the administrative record by 9/6/05, and file the entire record by 10/3/05. C/M . Ordered by Judge Edward R. Korman on 8/2/05. (Chee, Alvin) (Entered: 08/02/2005)

Aug. 2, 2005

Aug. 2, 2005

PACER

ORDER -- In view of Judge Korman's order of August 2, 2005 vacating his July 25, 2005 order, which referred this matter to the magistrate judge for a status conference, the status conference scheduled for September 8, 2005 is canceled. Ordered by Judge Viktor V. Pohorelsky on 8/3/05. (Newton, Joan)

Aug. 3, 2005

Aug. 3, 2005

PACER
27

ANSWER to Amended Complaint by Lester M. Crawford.(Amanat, F.) (Entered: 08/05/2005)

Aug. 5, 2005

Aug. 5, 2005

PACER
28

CERTIFICATE OF SERVICE by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Association of Reproductive Health Professionals, National Latina Insitute for Reproductive Health, Lester M. Crawford, Annie Tummino, Erin T. Mahoney, Carol Giardina certifying electronic service of Plaintiffs' First Set of Interrogatories and First Set of Document Requests on F. Franklin Amanat. (Strauss, Nan) (Entered: 08/17/2005)

Aug. 17, 2005

Aug. 17, 2005

PACER
29

MOTION to Stay Filing of Administrative Record, by way of letter from AUSA F. Franklin Amanat on behalf of defendant FDA to Chief Judge Korman seeking vacatur of the portion of the court's August 2, 2005, order requiring FDA to file an itemization of the administrative record by September 6 and to file the entire administrative record by October 3, and requesting a superseding order holding in abeyance the filing of the administrative record pending the Court's determination of the government's intended motion to dismiss the complaint, by Lester M. Crawford. (Amanat, F.) (Entered: 09/01/2005)

Sept. 1, 2005

Sept. 1, 2005

PACER
30

Letter from Simon Heller, Counsel for Plaintiffs to Chief Judge Korman Regarding Response to Government Letter of Sept. 1, 2005. (Strauss, Nan) (Entered: 09/02/2005)

Sept. 2, 2005

Sept. 2, 2005

PACER
31

Letter from F. Franklin Amanat, Assistant United States Attorney EDNY, to Simon Heller and Nan E. Strauss, counsel for the plaintiffs, Regarding service of index to administrative record compiled to date, in accordance with the Court's August 2 and September 5 orders, and regarding good-faith efforts to resolve outstanding dispute with regard to discovery,. (Amanat, F.) (Entered: 09/08/2005)

Sept. 8, 2005

Sept. 8, 2005

PACER
32

Letter from F. Franklin Amanat, Assistant United States Attorney EDNY, counsel for defendant, to Hon. Viktor V. Pohorelsky, United States Magistrate Judge, Regarding government's request for permission to file motion for protective order by memorandum of law instead of by letter-motion, and request for extension of time until September 23, 2005, to file motion for protective order. (Amanat, F.) (Entered: 09/13/2005)

Sept. 13, 2005

Sept. 13, 2005

PACER
33

ORDER re 32 Letter granting application to file memorandum and other relief. See Order. Ordered by Judge Viktor V. Pohorelsky on 9/14/2005. (Pohorelsky, Viktor) (Entered: 09/14/2005)

Sept. 14, 2005

Sept. 14, 2005

PACER
34

Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, by all defendants. Responses due by 9/30/2005 (Amanat, F.) (Entered: 09/16/2005)

Sept. 16, 2005

Sept. 16, 2005

PACER
35

Letter from F. Franklin Amanat, AUSA-EDNY, counsel for the defendant, to Simon Heller and Nan Strauss, Esqs., counsel for plaintiffs, Regarding service of motion papers for motion for judgment on the pleadings. (Amanat, F.) (Entered: 09/16/2005)

Sept. 16, 2005

Sept. 16, 2005

PACER
36

ORDER endorsed on letter dated 0/1/05 from F. Franklin Amanat, AUSA to Judge Korman. The motion is denied. The schedule for filing the administrative record was worked out during a telephone conference preceding the issuance of my order of 8/6/05, and contemplated the possibility that the FDA would delay its decision yet again. Ordered by Judge Edward R. Korman on 9/5/05. (Greene, Donna) (Entered: 09/20/2005)

Sept. 20, 2005

Sept. 20, 2005

PACER
37

Notice of MOTION for Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the plaintiffs' August 17, 2005, discovery requests, and precluding plaintiffs from propounding any further discovery in this case, or alternatively holding discovery in abeyance at least until the Court has decided the defendant's motion for judgment on the pleadings, as well as such other and further relief as the Court may deem proper, by all defendants. (Attachments: # 1 Certification of F. Franklin Amanat)(Amanat, F.) (Entered: 09/23/2005)

Sept. 23, 2005

Sept. 23, 2005

PACER
38

MEMORANDUM in Support re 37 Notice of MOTION for Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the plaintiffs' August 17, 2005, discovery requests, and precluding plaintiffs from propounding any further discovery in this case, or alternatively holding discov ery in abeyance at least until the Court has decided the defendant's motion for judgment on the pleadings, as well as such other and further relief as the Court may deem proper, by all defendants. (Attachments: # 1 Exhibit A: Plaintiffs' First Set of Interrogatories# 2 Exhibit B: Plaintiffs' First Set of Document Requests)(Amanat, F.) (Entered: 09/23/2005)

Sept. 23, 2005

Sept. 23, 2005

PACER
39

Letter from F. Franklin Amanat, AUSA EDNY, counsel for defendant, to Hon. Robert C. Heinemann, Clerk of the Court, Regarding notice that Dr. Andrew C. von Eschenbach has been automatically substituted as party defendant for Dr. Lester M. Crawford, and request that the Court update the docket sheet and the PACER/ECF system to reflect the new caption for the case, which should now read Tummino et al. v. von Eschenbach. (Amanat, F.) (Entered: 09/26/2005)

Sept. 26, 2005

Sept. 26, 2005

PACER
40

Letter from Plaintiffs' Counsel to Honorable Viktor V. Pohorelsky Regarding Stipulated Briefing Schedule on Defendant's Motion for a Protective Order. (Costello, Andrea) (Entered: 09/28/2005)

Sept. 28, 2005

Sept. 28, 2005

PACER
41

CERTIFICATE OF SERVICE by Kelly Mangan, Stephanie Seguin, Lori Tinney, Jennifer Brown, Candace Churchill, Francie Hunt, Association of Reproductive Health Professionals, National Latina Insitute for Reproductive Health, Lester M. Crawford, Annie Tummino, Erin T. Mahoney, Carol Giardina Plaintiffs' Opposition to Defendant's Motion for Judgment on the Pleadings (Strauss, Nan) (Entered: 09/30/2005)

Sept. 30, 2005

Sept. 30, 2005

PACER
42

Letter from F. Franklin Amanat, AUSA-EDNY, counsel for defendant, to Hon. Edward R. Korman, Chief United States District Judge, Regarding defendant's request, on consent of the plaintiffs, that defendant be relieved of the obligation (from the 8/2/05 order) to file the administrative record at this time, and that it be permitted to instead serve the administrative record on the plaintiffs pursuant to a schedule to be worked out between the parties. (Amanat, F.) (Entered: 10/03/2005)

Oct. 3, 2005

Oct. 3, 2005

PACER
43

Letter MOTION for Extension of Time to File Response/Reply as to 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, seeking extension of one week, until October 14, 2005, to serve reply brief and to file the entire briefing bundle with t he Court, with the consent and concurrence of the plaintiffs, by Lester M. Crawford. (Amanat, F.) (Entered: 10/06/2005)

Oct. 6, 2005

Oct. 6, 2005

PACER
44

Letter MOTION for Leave to File Excess Pages Memorandum in Opposition to Defendant's Motion for a Protective Order by all plaintiffs. (Strauss, Nan) (Entered: 10/07/2005)

Oct. 7, 2005

Oct. 7, 2005

PACER
45

RESPONSE in Opposition re 37 Notice of MOTION for Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the plaintiffs' August 17, 2005, discovery requests, and precluding plaintiffs from propounding any further discovery in this case, or alternatively holding discov Exhibits and Declaration attached filed by all plaintiffs. (Attachments: # 1 # 2)(Strauss, Nan) (Entered: 10/07/2005)

Oct. 7, 2005

Oct. 7, 2005

PACER

ORDER re 43 Letter MOTION for Extension of Time to File Response/Reply as to 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, seeking extension of one week, until October 14, 2005, to serve reply brief a filed by Lester M. Crawford, . Ordered by Judge Edward R. Korman on Oct. 7, 2005. The application is granted(Susi, PaulaMarie)

Oct. 11, 2005

Oct. 11, 2005

PACER

ORDER granting 44 Motion for Leave to File Excess Pages, nunc pro tunc. Ordered by JudgeViktor V. Pohorelsky on 10/13/2005. (Pohorelsky, Viktor)

Oct. 13, 2005

Oct. 13, 2005

PACER
46

Second MOTION for Extension of Time to File Response/Reply as to 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, via letter to Chief Judge Korman seeking short extension of time, until Tuesday, October 18, 2005, to serve reply brief and file briefing bundle, with consent of the plaintiffs, by Andrew C. von Eschenbach. (Amanat, F.) (Entered: 10/14/2005)

Oct. 14, 2005

Oct. 14, 2005

PACER
47

MEMORANDUM in Support re 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, by Andrew C. von Eschenbach. (Attachments: # 1 Appendix (Exhibits A to G appended to Memorandum of Law))(Amanat, F.) (Entered: 10/17/2005)

Oct. 17, 2005

Oct. 17, 2005

PACER
48

MEMORANDUM in Opposition re 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, by all plaintiffs. (Attachments: # 1 Appendix (Exhibits appended to plaintiffs' memorandum of law))(Amanat, F.) (Entered: 10/17/2005)

Oct. 17, 2005

Oct. 17, 2005

PACER
49

REPLY in Support re 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, by Andrew C. von Eschenbach. (Amanat, F.) (Entered: 10/17/2005)

Oct. 17, 2005

Oct. 17, 2005

PACER
50

Letter from F. Franklin Amanat, Assistant United States Attorney, EDNY, to Hon. Edward R. Korman, Chief U.S. District Judge, Regarding filing of briefing bundle on defendant's motion for judgment on the pleadings, with service of reply brief on plaintiffs and submission of courtesy copy to Chambers, and request for oral argument. (Amanat, F.) (Entered: 10/17/2005)

Oct. 17, 2005

Oct. 17, 2005

PACER

ORDER re 46 Second MOTION for Extension of Time to File Response/Reply as to 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, via letter to Chief Judge Korman seeking short extension of time, until Tuesd filed by Andrew C. von Eschenbach, . Ordered by Judge Edward R. Korman on Oct. 17, 2005. The application is granted.(Susi, PaulaMarie)

Oct. 17, 2005

Oct. 17, 2005

PACER

ORDER re 42 Letter, . Ordered by Judge Edward R. Korman on Oct. 19, 2005. The application is granted.(Susi, PaulaMarie)

Oct. 19, 2005

Oct. 19, 2005

PACER
51

Letter MOTION for Extension of Time to File Response/Reply as to 37 Notice of MOTION for Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the plaintiffs' August 17, 2005, discovery requests, and precluding plaintiffs from propounding any further discovery in this case, or alternatively holding discov, by way of letter to Magistrate Judge Pohorelsky seeking two day extension of time, nunc pro tunc, until October 25, 2005, and also seeking leave to file an oversized brief, all with the consent and concurrence of the plaintiffs, by Andrew C. von Eschenbach. (Amanat, F.) (Entered: 10/24/2005)

Oct. 24, 2005

Oct. 24, 2005

PACER
52

REPLY in Support re 37 Notice of MOTION for Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the plaintiffs' August 17, 2005, discovery requests, and precluding plaintiffs from propounding any further discovery in this case, or alternatively holding discov ery in abeyance at least until the Court has decided the defendant's motion for judgment on the pleadings, as well as such other and further relief as the Court may deem proper, by Andrew C. von Eschenbach. (Attachments: # 1 Exhibit A through D attached to Reply Brief)(Amanat, F.) (Entered: 10/25/2005)

Oct. 25, 2005

Oct. 25, 2005

PACER
53

Letter from F. Franklin Amanat, AUSA EDNY, to Hon. Robert C. Heinemann, Clerk of the Court, Regarding filing of corrected table of contents for the Reply Memorandum of Law in Support of Defendant's Motion for Protective Order. (Amanat, F.) (Entered: 10/26/2005)

Oct. 26, 2005

Oct. 26, 2005

PACER
54

ORDER . Ordered by Judge Edward R. Korman on Oct. 26, 2005. SEE ATTACHMENT FOR BODY OF ORDER.the plaintiff are directed to respond to this request withing 7 days of the date of this order. The defendant may have 5 days to reply if it wishes. The matter is set down for oral argument at 2:30 p.m. on Friday, Dec. 16, 2005.(Korman, Edward) (Entered: 10/26/2005)

Oct. 26, 2005

Oct. 26, 2005

PACER

ORDER, by electronic endorsementgranting 51 Motion for Extension of Time to File Response/Reply and for leave to submit oversize brief re 37 Notice of MOTION for Protective Order Replies due by 10/25/2005. Ordered by JudgeViktor V. Pohorelsky on 10/26/2005. (Pohorelsky, Viktor)

Oct. 26, 2005

Oct. 26, 2005

PACER
55

ORDER Setting Hearing on Motion 37 Notice of MOTION for Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the plaintiffs' August 17, 2005, discovery requests, and precluding plaintiffs from propounding any further discovery in this case, or alternatively holding discov: Motion Hearing set for 11/8/2005 02:00 PM before Magistrate-Judge Viktor V. Pohorelsky. Ordered by Judge Viktor V. Pohorelsky on 10/27/2005. (Pohorelsky, Viktor) (Entered: 10/27/2005)

Oct. 27, 2005

Oct. 27, 2005

PACER
56

Letter from Plaintiffs' Counsel to Magistrate Judge Pohorelsky Regarding Request for Individual Plaintiffs' Counsel to Appear by Telephone in Lieu of Personal Appearance for Hearing on Defendant's Motion for a Protective Order. (Costello, Andrea) (Entered: 11/01/2005)

Nov. 1, 2005

Nov. 1, 2005

PACER
57

Letter from Plaintiffs' Counsel to Magistrate Judge Pohorelsky Regarding Corrected Request to Appear by Telephone in Lieu of Personal Appearance for Hearing on Defendant's Motion for a Protective Order. (Costello, Andrea) (Entered: 11/01/2005)

Nov. 1, 2005

Nov. 1, 2005

PACER
58

ORDER . Ordered by Judge Edward R. Korman on Oct. 26, 2005. Amended order (note scheduling remains unchanged).(Korman, Edward) (Entered: 11/01/2005)

Nov. 1, 2005

Nov. 1, 2005

PACER

ORDER re 57 Letter, by electronic endorsement: Application Granted. So Ordered by Judge Viktor V. Pohorelsky on 11/2/2005. (Pohorelsky, Viktor)

Nov. 2, 2005

Nov. 2, 2005

PACER
59

Letter from Plaintiffs Regarding Response to Judge Korman's Order Dated 10/26/05, Seeking Leave to File a Second Amended Complaint. (Strauss, Nan) (Entered: 11/02/2005)

Nov. 2, 2005

Nov. 2, 2005

PACER
60

AMENDED COMPLAINT Proposed Second Amended Complaint against all defendants, filed by all plaintiffs.(Strauss, Nan) (Entered: 11/02/2005)

Nov. 2, 2005

Nov. 2, 2005

PACER
61

NOTICE of Appearance by Sanford Cohen on behalf of all plaintiffs (Cohen, Sanford) (Entered: 11/07/2005)

Nov. 7, 2005

Nov. 7, 2005

PACER
62

NOTICE of Appearance by Galen Leigh Sherwin on behalf of all plaintiffs (Sherwin, Galen) (Entered: 11/07/2005)

Nov. 7, 2005

Nov. 7, 2005

PACER
63

Letter from F. Franklin Amanat, AUSA EDNY, to Hon. Edward R. Korman, Chief USDJ, EDNY, Regarding request for extension of one day, until Thursday November 10, 2005, to submit government's reply to plaintiffs' response to Court's Order dated October 26, 2005 (amended on November 1). (Amanat, F.) (Entered: 11/07/2005)

Nov. 7, 2005

Nov. 7, 2005

PACER

ORDER re 63 Letter, . Ordered by Judge Edward R. Korman on Nov. 8, 2005. The application is granted.(Susi, PaulaMarie)

Nov. 8, 2005

Nov. 8, 2005

PACER
64

NOTICE of Appearance by Vivien Maxine Labaton on behalf of all plaintiffs (Labaton, Vivien) (Entered: 11/08/2005)

Nov. 8, 2005

Nov. 8, 2005

PACER
66

Minute Entry for proceedings held before Viktor V. Pohorelsky: Oral Argument on Motion for Protective Order held on 11/8/2005. Counsel for parties present. Oral argument held. Decision reserved. Discovery is hereby stayed until the next conference. The next conference shall be held on 12/20/05 immediately following the oral argument on the motion to dismiss before Judge Korman. (Chee, Alvin) (Entered: 11/17/2005)

Nov. 8, 2005

Nov. 8, 2005

PACER
67

Minute Entry for proceedings held before Viktor V. Pohorelsky : Oral Argument on Motion for Protective Order held on 11/8/2005. Next conf set for 12/20/05 immediately following the oraal argument on the motion to dismiss before Judge Korman. (Williams-Jackson, Sandy) (Entered: 11/18/2005)

Nov. 8, 2005

Nov. 8, 2005

PACER
65

REPLY in Support re 58 Order, 54 Order, by way of letter from F. Franklin Amanat, AUSA EDNY, to Hon. Edward R. Korman, replying to plaintiffs' November 2, 2005, response to Court's orders of October 26 and November 1, 2005, by Andrew C. von Eschenbach(in his official capacity as Acting Commissioer of the Food and Drug Administration). (Amanat, F.) (Entered: 11/10/2005)

Nov. 10, 2005

Nov. 10, 2005

PACER
68

Letter from Nan Strauss, Counsel for Plaintiffs to Chief Judge Korman Regarding Request to Submit Supplemental Authority in Support of Plaintiffs' Opposition to Defendant's Motion for Judgment on the Pleadings. (Attachments: # 1 Supplement GAO Report: "FDA Decision Process to Deny Initial Application for Over-the-Counter Marketing of the Emergency Contraceptive Drug Plan B Was Unusual")(Strauss, Nan) (Entered: 11/18/2005)

Nov. 18, 2005

Nov. 18, 2005

PACER
69

Letter from F. Franklin Amanat, AUSA-EDNY, on behalf of all parties, as well as non-parties Barr Pharmaceuticals, Inc. and Duramed Research, Inc., to Hon. Viktor V. Pohorelsky, United States Magistrate Judge, Regarding submission of proposed stipulated protective order with respect to the administrative record, which we respectfully ask the Court to enter at this time. (Attachments: # 1 Text of Proposed Order Proposed Stipulated Protective Order with Respect to Administrative Record)(Amanat, F.) (Entered: 11/23/2005)

Nov. 23, 2005

Nov. 23, 2005

PACER

ORDER re 59 Letter. Ordered by Judge Edward R. Korman on Nov. 28, 2005. The motion to file the second amended complaint is granted. In doing so, I do not preclude the defendant from arguing that the Section 706(1) cause of action should be dismissed when I hear oral argument on the 20th of December. We can discuss the plaintiff's application to move for summary judgment on the 706(1) cause of action at that time.(Susi, PaulaMarie)

Nov. 29, 2005

Nov. 29, 2005

PACER

STIPULATION AND ORDER: The Stipulated Protective Order submitted under docket entry 69 is hereby so ordered with the proviso that nothing in the order shall be construed as a limitation on the court's ability to modify the order, whether upon application of a party or on its own motion. Ordered by Judge Viktor V. Pohorelsky on 12/2/2005. (Pohorelsky, Viktor)

Dec. 2, 2005

Dec. 2, 2005

PACER
70

ORDER . Ordered by Judge Edward R. Korman on Dec. 5, 2005. The FDA is ordered to address the issue of whether its argument can be rectified with the standard for implied repeals. The response should be filed by December 15, 2005. See order for details.(Korman, Edward) (Entered: 12/05/2005)

Dec. 5, 2005

Dec. 5, 2005

PACER
71

AMENDED COMPLAINT Second Amended Complaint against all defendants, filed by all plaintiffs.(Strauss, Nan) (Entered: 12/07/2005)

Dec. 7, 2005

Dec. 7, 2005

Clearinghouse
72

NOTICE of Appearance by Priscilla Joyce Smith on behalf of all plaintiffs (Smith, Priscilla) (Entered: 12/15/2005)

Dec. 15, 2005

Dec. 15, 2005

PACER
73

RESPONSE in Support re 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, [Supplemental Memorandum of Law in Support of MJOP, submitted in response to Court's Order of December 5, 2005] filed by Andrew C. von Eschenbach(in his official capacity as Acting Commissioer of the Food and Drug Administration). (Amanat, F.) (Entered: 12/15/2005)

Dec. 15, 2005

Dec. 15, 2005

PACER
74

RESPONSE in Support re 34 Notice of MOTION for Judgment on the Pleadings Dismissing the Amended Complaint with Prejudice, [CORRECTED VERSION of Supplemental Memorandum in Support of Defendant's MJOP (Originally filed 12/15/05), with Table of Authorities added, Certificate of Service attached, and a number of typographical errors corrected] filed by Andrew C. von Eschenbach(in his official capacity as Acting Commissioer of the Food and Drug Administration). (Attachments: # 1 Certificate of Service)(Amanat, F.) (Entered: 12/16/2005)

Dec. 16, 2005

Dec. 16, 2005

PACER
75

Letter from Plaintiffs' Counsel to Chief Judge Edward R. Korman Regarding Request to appear by telephone for hearing on Defendant's Motion for Judgment on the Pleadings. (Costello, Andrea) (Entered: 12/19/2005)

Dec. 19, 2005

Dec. 19, 2005

PACER
76

Letter from Plaintiffs' Counsel to Magistrate Judge Viktor V. Pohorelsky Regarding Request to appear by telephone for oral argument on Defendant's Motion for a Protective Order. (Costello, Andrea) (Entered: 12/19/2005)

Dec. 19, 2005

Dec. 19, 2005

PACER

ENDORSED ORDER: Plaintiff's request to appear at the 12/22/05 conference by telephone is granted. Endorsed on document #75. C/M by chambers . Ordered by Judge Edward R. Korman on 12/20/05. (Chee, Alvin)

Dec. 20, 2005

Dec. 20, 2005

PACER

ORDER re 76 Letter, by electronic endorsement: the application to appear by telephone is granted. Counsel shall contact chambers at (718) 260-2400 after the hearing before Judge Korman concludes. Ordered by Judge Viktor V. Pohorelsky on 12/21/2005. (Pohorelsky, Viktor)

Dec. 21, 2005

Dec. 21, 2005

PACER

Minute Entry for proceedings held before Edward R. Korman : Status Conference held on 12/21/2005. (Court Reporter n/a.) Telephone conf held. Nan Straus & AUSA Amanat present. Application to delay oral argument heard - denied. (Korman, Edward)

Dec. 21, 2005

Dec. 21, 2005

PACER
77

Letter from Plaintiffs to Chief Judge Korman and Magistrate Judge Pohorelsky Regarding FDA documents submitted as supplemental authority in support of Plaintiffs' Opposition to Defendant's Motion for Judgment on the Pleadings and Defendant's motion to preclude discovery. (Attachments: # 1 # 2 # 3 # 4 # 5)(Strauss, Nan) (Entered: 12/21/2005)

Dec. 21, 2005

Dec. 21, 2005

PACER

ORDER denying 34 Motion for Judgment on the PleadingsNOT FOR PUBLICATION. Ordered by JudgeEdward R. Korman on Dec. 22, 2005.The record should reflect the fact that I have reserved decision on the issue whether the District Court or the Court of Appeals is the appropriate forum for the cause of action based on the denial of the Citizen Petition (assuming it was denied). I will review the relevant caselaw and then decide this matter. Plaintiffs shall notify me whether they would oppose a transfer of this cause of action to the Court of Appeals. Defendant's motion for judgment on the pleadings is otherwise denied.(Korman, Edward)

Dec. 22, 2005

Dec. 22, 2005

PACER
78

Minute Entry for proceedings held before Viktor V. Pohorelsky : Status Conference held on 12/22/2005. Ruling entered on the record denying defendant's motion for a protective order in part and scheduling further briefing on remaining aspects of the motion. See annexed calendar. (Pohorelsky, Viktor) (Entered: 12/22/2005)

Dec. 22, 2005

Dec. 22, 2005

PACER

Case Details

State / Territory: New York

Case Type(s):

Reproductive Issues

Key Dates

Filing Date: Jan. 21, 2005

Closing Date: April 5, 2013

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Numerous individual members of the Morning-After-Pill (“MAP”) Conspiracy, a non-profit coalition of feminist organizations seeking to make emergency contraceptives available over-the-counter.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

Center for Reproductive Rights

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Food and Drug Administration, Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Constitutional Clause(s):

Due Process

Due Process: Substantive Due Process

Equal Protection

Availably Documents:

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Content of Injunction:

Preliminary relief granted

Issues

Reproductive rights:

Birth control restrictions

General:

Contraception

Discrimination-basis:

Sex discrimination

Affected Gender:

Female

Medical/Mental Health:

Reproductive health care (including birth control, abortion, and others)