MOTION REQUESTING STATUS CONFERENCE 1

JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

WILD EARTH ADVOCATES

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com

Gregory Law Group 

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957 

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KELSEY CASCADIA ROSE JULIANA; 

XIUHTEZCATL TONATIUH M., through his 

Guardian Tamara Roske-Martinez; et al.

Plaintiffs,

v.

The UNITED STATES OF AMERICA; 

DONALD TRUMP, in his official capacity as 

President of the United States; et al.,

Defendants.

Case No.: 6:15-cv-01517-TC 

MOTION OF PLAINTIFFS 

REQUESTING STATUS CONFERENCE 

EXPEDITED HEARING REQUESTED

Case 6:15-cv-01517-TC Document 185 Filed 03/16/18 Page 1 of 6
MOTION REQUESTING STATUS CONFERENCE 2

TO THE COURT AND ALL ATTORNEYS OF RECORD:

Plaintiffs hereby move this Court to set a prompt telephonic status conference for Friday, 

March 23, 2018. On March 7, 2018, Defendants’ petition for writ of mandamus was denied by 

the Ninth Circuit. As the petition was denied, there never was a mandate granted or issued and 

this Court never was deprived of jurisdiction over this case. Thus, this Court should conduct an 

immediate status conference to move this case promptly to trial in 2018. Plaintiffs request an 

expedited hearing on this motion.

Compliance with Local Rule 7-1(a)(1): In compliance with Local Rule 7-1(a)(1)(a), 

counsel for Plaintiffs made a good faith effort through letters, emails, and voicemails to resolve 

the dispute and have been unable to do so. On March 8, 2018, counsel for Plaintiffs wrote a letter 

to counsel for Defendants. A true and correct copy of that letter is attached as Exhibit 1 to the 

Supporting Declaration of Philip L. Gregory, filed herewith (“Gregory Decl.”). The March 8 

Letter stated, in part, as follows:

Case Management Conference: Now that the stay has been lifted, we will contact the 

Court to set up an immediate telephone case management conference. At this case 

management conference, we will ask the Court to set a trial date in October 2018, as well 

as a fact and expert discovery schedule. Plaintiffs also will request that the Court return to 

the practice of setting monthly status conferences, with counsel meeting and conferring 

before the conference and providing written status reports.

On March 8, Sean Duffy, co-counsel for Defendants, responded via email that counsel for 

Defendants would respond “shortly with proposed dates and times for a call to discuss next 

steps.” On March 13, counsel for Plaintiffs sent an email that both: (a) informed counsel for 

Defendants that Plaintiffs would be attempting to set up a “telephonic CMC”; and (b) requested 

Case 6:15-cv-01517-TC Document 185 Filed 03/16/18 Page 2 of 6
MOTION REQUESTING STATUS CONFERENCE 3

an update on the timing of a conference call among counsel. Later that day, Mr. Duffy wrote 

that on March 14 he would propose times for a call; on March 14, Mr. Duffy wrote again, stating 

that he would propose times on March 15.

On March 14, counsel for Plaintiffs both left a voicemail and emailed counsel for 

Defendants stating that, on March 15, Plaintiffs would be filing this Motion for a status 

conference. A true and correct copy of that email is attached as Exhibit 2 to the Gregory Decl. 

The email requested “to confer with you before filing the motion to get the position of the 

Department of Justice both on the motion and as to a date for the status conference.” The email 

requested a response by 2:00 p.m. on March 15. 

At 2 p.m. on March 15, counsel for Defendants responded as follows:

“Our position is that no status conference should proceed until the parties meet and 

confer first. Doing so will conserve judicial resources by allowing the parties to clearly define 

the issues for the court’s consideration and in the process hopefully narrow the issues requiring 

court consideration. We are available to meet and confer by telephone on Thursday or Friday of 

next week (i.e. March 22 or 23). Following the meet and confer, we could then ask the Court to 

schedule an in-person status conference. We propose that the parties also meet in person the day 

before the status conference to discuss progress they have been able to make on the issues and, 

hopefully, further narrow the issues for the Court.” 

Counsel for Plaintiffs are prepared to meet and confer with counsel for Defendants by 

telephone on Thursday, March 22. Plaintiffs would request a telephonic status conference on 

Friday, March 23. Part of the agenda for that status conference would be to: (a) set a date for an 

in-person status conference; (b) develop a discovery schedule; and (c) set a trial date in 2018.

Case 6:15-cv-01517-TC Document 185 Filed 03/16/18 Page 3 of 6
MOTION REQUESTING STATUS CONFERENCE 4

Procedural Basis for Motion for Status Conference: Given the urgency of the 

climate crisis, and the delay resulting from Defendant’s petition for writ of mandamus, Plaintiffs 

Kelsey Cascadia Rose Juliana, et al., request a prompt telephonic status conference for Friday, 

March 23, for case planning and scheduling in order to re-commence moving this case to trial.

In June 2017, Judge Coffin issued an order releasing the fossil fuel industry defendants 

from the case and setting a trial date for February 5, 2018 before Judge Aiken at the U.S. District 

Court of Oregon in Eugene. (Doc. 182.)

On June 9, 2017, Defendants filed a petition with the Ninth Circuit Court of Appeals, 

requesting a writ of mandamus and a stay of “proceedings in the district court until the merits of 

this petition for mandamus are resolved.” (Petition, p. 2.) On July 25, 2017, the Ninth Circuit 

panel stayed “district court proceedings, temporarily, pending further order from this court. See 

Ninth Circuit Gen. Ord. 6.8(a).”

On March 7, 2018, the Ninth Circuit panel denied without prejudice the petition for a writ 

of mandamus, concluding the issues that the defendants raised on mandamus were better 

addressed through the ordinary course of litigation. The panel specifically found “defendants do 

not satisfy the Bauman [v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977)] factors at this stage of the 

litigation. The issues that the defendants raise on mandamus are better addressed through the 

ordinary course of litigation. We therefore decline to exercise our discretion to grant mandamus 

relief.” (Opinion, 8-9.)

Because the petition was denied, the stay is no longer in place and this Court should 

conduct a prompt status conference and not wait weeks, as Defendants’ email seems to suggest.

Legal Basis for Motion for Status Conference: Due to the nature of mandamus 

proceedings, the Ninth Circuit never issued a “mandate.” When the Ninth Circuit denies 

Case 6:15-cv-01517-TC Document 185 Filed 03/16/18 Page 4 of 6
MOTION REQUESTING STATUS CONFERENCE 5

mandamus relief, the court does not issue a separate mandate. The order is effective 

immediately. “[T]here is no need for us to relinquish our jurisdiction to the district court because 

it was never deprived of jurisdiction over the underlying case.” Ellis v. United States Dist. Ct. for 

Western Dist. of Wash. (Tacoma), 360 F3d 1022, 1023 (9th Cir. 2004) (en banc).

As this case now stands, there is no mandate to recall. The mandate is a document issued 

by the Court of Appeals that transfers jurisdiction over a case back to the district court. Id. As 

the Ninth Circuit stated in Ellis: “A writ of mandate is “an order from an appellate court 

directing a lower court to take a specified action.” Black's Law Dictionary 973 (7th ed.1999). 

Because a writ of mandate functions as an order, we do not issue along with it a ‘mandate’ in the 

sense of a secondary decree relinquishing jurisdiction over the case to the district court. See 

Sgaraglino v. State Farm Fire & Cas. Co., 896 F.2d 420, 421 (9th Cir.1990) (defining the 

‘issuance of the mandate’ as ‘return[ing] [the case] to the district court's jurisdiction’); Nelson, 

Goelz & Watts, Federal Ninth Circuit Civil Appellate Practice (The Rutter Group 2003) § 13:323 

(‘The court does not issue a separate mandate after it grants or denies mandamus relief. The 

order is effective immediately.’).”

This Court did not lose jurisdiction over this case merely because Defendants filed an 

interlocutory petition for an extraordinary writ. In their email of March 15, counsel for 

Defendants did not contest this Court’s jurisdiction to proceed. As a consequence, there is no 

“mandate,” i.e., return of jurisdiction, for the Ninth Circuit panel to stay or recall.

Conclusion: A temporary stay was issued until the merits of Defendants’ petition for 

mandamus could be resolved. On March 7, 2018, Defendants’ petition was denied. As the 

petition was denied, there never was a mandate granted or issued. This Court was never deprived 

of jurisdiction over this case. Thus, given the urgency in addressing climate change and 

Case 6:15-cv-01517-TC Document 185 Filed 03/16/18 Page 5 of 6
MOTION REQUESTING STATUS CONFERENCE 6

Plaintiffs injuries, this Court should conduct an immediate status conference to move this case 

promptly to trial in 2018.

Counsel for Plaintiffs are prepared to meet and confer with counsel for Defendants by 

telephone on Thursday, March 22. Plaintiffs would request a telephonic status conference on 

Friday, March 23. Part of the agenda for that status conference would be to: (a) set a date for an 

in-person status conference; (b) develop a discovery schedule; and (c) set a trial date in 2018.

Dated: March 15, 2018 GREGORY LAW GROUP

By: /s/ Philip L. Gregory

PHILIP L. GREGORY

 Attorney for Plaintiffs

Case 6:15-cv-01517-TC Document 185 Filed 03/16/18 Page 6 of 6