Fresenius Kabi USA, LLC v. State of Nebraska et al
A lawsuit filed by German drug manufacturer Fresenius Kabi against the State of Nebraska over the drugs used for lethal injection.
| Fresenius Kabi USA, LLC |
| State of Nebraska, Scott Frakes and Nebraska Department of Correctional Services |
| State of Indiana, Cline Williams Wright Johnson & Oldfather, L.L.P., State of Louisiana, State of Idaho, State of Arizona, State of South Carolina, State of Utah, State of Florida, State of Texas, State of Oklahoma, State of Tennessee, State of Alabama, State of Nevada, State of Arkansas and State of Georgia |
| Sandoz, Inc. |
| 4:2018cv03109 |
| August 7, 2018 |
| US District Court for the District of Nebraska |
| 4 Lincoln Office |
| Richard G Kopf |
| P.I.: Other |
| 28 U.S.C. § 1391 |
| None |
Docket Report
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| Filing 65 MANDATE from USCA - 8th Circuit (18-2717) In accordance with the opinion and judgment of 08/13/2018, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above-styled matter regarding Interlocutory Appeal #40 . (KLF) |
Filing 64
ORDER - that the Clerk shall close this case. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to Andrew Kantra and Noel B. Ix) (KLF)
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| Filing 63 NOTICE of Voluntary Dismissal by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC (Christensen, Mark) Modified on 8/30/2018 to correct event (CS). |
| Filing 62 NOTICE of Withdrawal of Motion of Sandoz Inc. for Leave to Intervene as Plaintiff (CORRECTED) by Attorney Mark A. Christensen on behalf of Intervenor Sandoz, Inc. (Christensen, Mark) Modified on 8/30/2018 to change to motion event (CS). |
| Filing 61 NOTICE of Withdrawal of Motion of Sandoz Inc. for Leave to Intervene as Plaintiff by Attorney Mark A. Christensen on behalf of Intervenor Sandoz, Inc. (Christensen, Mark) |
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Filing 60
TEXT ORDER - The Unopposed Motion for Extension of Time to Answer or Otherwise Respond to Plaintiff's Complaint and to Respond to Intervenor's Motion to Intervene (Filing No. #59 ) is GRANTED. The Defendants' deadline to answer or otherwise respond to Plaintiff's Complaint (Filing No. #1 ) and to respond to potential Intervenor Sandoz, Inc.'s Motion to Intervene (Filing No. #44 ) is extended until September 18, 2018. The Clerk of Court shall adjust such deadlines accordingly. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to Andrew Kantra and Noel B. Ix) (KLF)
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| Filing 59 UNOPPOSED MOTION for Extension of Time to File a Responsive Pleading , UNOPPOSED MOTION to Extend Deadline to Respond to MOTION to Intervene #44 by Attorney David A. Lopez on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska.(Lopez, David) |
| Filing 58 ATTORNEY LETTER by Clerk that Attorney Noel B. Ix has not registered for admittance to practice or registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (CS) |
| Filing 57 ATTORNEY LETTER by Clerk that Attorney Andrew Kantra has not registered for admittance to practice or registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (CS) |
| Filing 56 RESTRICTED DOCUMENT by Nebraska State Senator Ernie Chambers. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (KLF) |
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Filing 55
RESTRICTED ORDER. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Ordered by Senior Judge Richard G. Kopf. (KLF)
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| Filing 54 AUDIO FILE. Court Date & Time [ 08/13/2018 9:52:19 AM ]. File Size [ 6426 KB ]. Run Time [ 00:26:47 ]. (Motion Hearing). (auto-docket). |
| Filing 53 TEXT MINUTE ENTRY for proceedings held before Senior Judge Richard G. Kopf in Lincoln on 08/13/2018. Oral argument hearing held regarding Motion to Intervene #44 filed by Sandoz, Inc. Briefs to be submitted. Appearance for Intervenor Sandoz, Inc.: Mark A. Christensen and Nathan D. Clark; Defendants: James D. Smith and David A. Lopez; Interested Party Cline, Williams, Wright, Johnson, & Oldfather, L.L.P.: Richard P. Jeffries; Courtroom Deputy: Connie Schultz; Court Reporter: digital; Time Start: 9:58 a.m. Time Stop: 10:38 a.m. Time in Court: 27 Minutes. (CS) |
| Filing 52 COPY of Judgment from USCA - 8th Circuit (18-2717) This appeal from the United States District Court was submitted on the record of the district court and briefs of the parties. After consideration, it is hereby ordered and adjudged that the order of the district court in this cause is affirmed in accordance with the opinion of this Court. (KLF) |
| Filing 51 COPY of Opinion of USCA - 8th Circuit (18-2717) regarding Interlocutory Appeal #40 . (Attachments: #1 Letter by Clerk) (KLF) |
| Filing 49 NOTICE of Appearance by Attorney Richard P. Jeffries on behalf of Interested Party Cline Williams Wright Johnson & Oldfather, L.L.P. (Jeffries, Richard) |
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Filing 48
MEMORANDUM AND ORDER that at the end of the hearing on Friday, after I denied the request for a TRO, counsel for Plaintiff asked that I enjoin the defendants. I was confused and asked him to clarify. I asked him how his request was different from what I had just done by denying a TRO. He said something like it was not very different. He also said something about needing to orally move for an injunction for purposes of taking an appeal to the Court of Appeals. I orally denied the oral motion after hearing from counsel for the Defendants. At that time (and now) there was pending a written motion for a preliminary injunction #8 that was separate from the motion for a temporary restraining order #7 . To be clear for the Court of Appeals, I have not denied the motion for preliminary injunction. I would have only done so if I had taken live testimony which I did not do, with the agreement of both parties, when I heard the TRO request. If counsel's oral motion was intended as a back door way of boosting Plaintiffs jurisdictional posture in the Court of Appeals, I wish to make clear that the motion for a preliminary injunction and the request for a permanent injunction remain pending. Thus, it is an open question to be decided by the Court of Appeals whether Plaintiff fits within the limited jurisdictional exception for appeals of the denial of temporary restraining orders. IT IS ALSO ORDERED that the Clerk shall as soon as reasonably possible provide the Court of Appeals with a copy of this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy electronically sent to Court of Appeals and Michael Gans) (JLS)
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Filing 50
TEXT ORDER - Plaintiff's request for an expedited transcript of the hearing held on 08/10/18 is granted. Rogene S. Schroder shall prepare an expedited one-day transcript. Ordered by Senior Judge Richard G. Kopf. (DKM)
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| Filing 47 TEXT NOTICE of Hearing regarding Text Order 46 . The MOTION to Intervene #44 is set for hearing in whatever courtroom is available on August 13, 2018 at 10:00 a.m. in the Robert V. Denney Federal Building in Lincoln, Nebraska. (JLS) |
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Filing 46
TEXT ORDER regarding the Motion to Intervene #44 . The Motion to Intervene will be heard in whatever courtroom is available on Monday, August 13, 2018, at 10:00 a.m. in the Robert V. Denney Federal Building in Lincoln, Nebraska. Counsel for the Intervenor is notified that the Court is considering sanctions under Federal Rule of Civil Procedure 11. Judge Kopf notes that the Motion to Intervene was filed at 3:49 p.m. on Saturday, August 11, 2018. Ordered by Senior Judge Richard G. Kopf. (JLS)
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| Filing 45 BRIEF in support of MOTION to Intervene #44 by Attorney Mark A. Christensen on behalf of Intervenor Sandoz, Inc..(Christensen, Mark) |
| Filing 44 MOTION to Intervene by Attorney Mark A. Christensen on behalf of Intervenor Sandoz, Inc.. (Attachments: #1 Exhibit A - Complaint)(Christensen, Mark) |
| Filing 43 TRANSCRIPT (UNREDACTED) of Proceedings before Senior Judge Richard G. Kopf held on August 10, 2018. Total Number of Billable Pages: 36. Total Number of Pages: 36. In accordance with the transcript redaction procedure, available at http://www.ned.uscourts.gov/internetDocs/pom/tran_redaction_procedure.pdf, the transcript can only be viewed at the courts public terminal or purchased through Transcriber Rogene S. Schroder at (402) 661-7383 or roschrod79@yahoo.com before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Redaction Request due 9/4/2018. Redacted Transcript Deadline set for 9/11/2018. Release of Transcript Restriction set for 11/9/2018. (RSS) |
| Filing 42 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Interlocutory Appeal #40 and Memorandum and Order #38 . Notice of Appeal filed on 08/10/2018 by Plaintiff Fresenius Kabi USA, LLC. NOTIFICATION TO COUNSEL AND PARTIES - FILE REQUEST FOR TRANSCRIPT WITH THE DISTRICT COURT CLERKS OFFICE. (KLF) |
| Filing 41 AUDIO FILE. Court Date & Time [ 08/10/2018 2:51:50 PM ]. File Size [ 13736 KB ]. Run Time [ 00:57:14 ]. (Motion for Temporary Restraining Order Hearing). (auto-docket). |
| Filing 40 INTERLOCUTORY APPEAL regarding Memorandum and Order #38 by Attorneys James M. Bausch, Mark A. Christensen, and Nathan D. Clark on behalf of Plaintiff Fresenius Kabi USA, LLC. Filing fee $505. Receipt number 4007349. (KLF) |
| Filing 39 TEXT MINUTE ENTRY for proceedings held before Senior Judge Richard G. Kopf in Lincoln on 08/10/2018. Oral argument hearing held on Plaintiff's Motion for Temporary Restraining Order #7 . The Court takes judicial notice of the court file as it exists at the time of hearing. Plaintiff's oral objection to Defendants' Index of Evidence #26 is overruled without prejudice to reassertion at a later date if necessary. Court denies Plaintiff's Motion for Temporary Restraining Order #7 . Memorandum and Order forthcoming. Expedited Transcript of proceedings ordered. Appearance for Plaintiff: Mark A. Christensen and Nathan D. Clark; Defendants: Ryan S. Post, James D. Smith, and David A. Lopez; Courtroom Deputy: Connie Schultz; Court Reporter: digital; Time Start: 3:01 p.m. Time Stop: 3:58 p.m. Time in Court: 57 Minutes. (CS) |
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Filing 38
MEMORANDUM AND ORDER - that the motion for a temporary restraining order (Filing No. #7 ) is denied. Ordered by Senior Judge Richard G. Kopf. (KLF)
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| Filing 37 INDEX in support of Motion for Preliminary Injunction and Motion for Temporary Restraining Order (Supplemental) by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 36 TRANSCRIPT (UNREDACTED) of Conference Call proceedings before Senior Judge Richard G. Kopf Total Number of Billable Pages: 8. Total Number of Pages: 9. In accordance with the transcript redaction procedure, available at http://www.ned.uscourts.gov/internetDocs/pom/tran_redaction_procedure.pdf, the transcript can only be viewed at the courts public terminal or purchased through Transcriber Lori J. Sehnert at (402) 477-8425 or contact@generalreportingservice.com before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Redaction Request due 8/31/2018. Redacted Transcript Deadline set for 9/10/2018. Release of Transcript Restriction set for 11/8/2018. (Sehnert, Lori) |
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Filing 35
ORDER - The evidence objection (filing no. #28 ) submitted by Defendants is denied without prejudice to reassertion should a preliminary injunction or permanent injunction hearing be necessary. The unopposed motion for leave file an Amici Curiae brief (filing no. #31 ) is granted. Ordered by Senior Judge Richard G. Kopf. (KLF)
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Filing 34
TEXT STRIKE ORDER that Pursuant to NEGenR 1.3(a)(4), the Motion for Leave #29 and Motion for Leave #30 are stricken for the following reasons: Pursuant to information received from attorney Dylan Jacob, the documents contain incorrect information regarding the joining states. The correct document has been filed at Filing No. #31 . Ordered by Senior Judge Richard G. Kopf. (KMG)
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| Filing 33 REPLY BRIEF in support of its Motions for Temporary Restraining Order and Preliminary Injunction by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 32 CORPORATE DISCLOSURE STATEMENT pursuant to Fed. R. Civ. P. 7.1 by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 31 UNOPPOSED MOTION for Leave to File Amici Curiae Brief (corrected) by Attorney Nicholas J. Bronni on behalf of Defendant State of Nebraska. (Attachments: #1 Exhibit A - Proposed Amici Curiae Brief)(Bronni, Nicholas) |
| Filing 30 STRICKEN - UNOPPOSED MOTION for Leave to File Amici Curiae Brief (corrected) by Attorney Nicholas J. Bronni on behalf of Defendant State of Nebraska. (Attachments: #1 Exhibit A - Proposed Amici Curiae Brief)(Bronni, Nicholas) Modified on 8/10/2018 to reflect the document is stricken pursuant to Filing No. 34 (KMG). |
| Filing 29 STRICKEN - UNOPPOSED MOTION for Leave to File Amici Curiae Brief by Attorney Nicholas J. Bronni on behalf of Defendant State of Nebraska. (Attachments: #1 Exhibit A - Proposed Amici Curiae Brief)(Bronni, Nicholas) Modified on 8/10/2018 to reflect the document is stricken pursuant to Filing No. 34 (KMG). |
| Filing 28 OBJECTION to Index #9 , Attachment - Continued #10 Evidence Objections by Attorney Ryan S. Post on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska.(Post, Ryan) |
| Filing 27 BRIEF in opposition to MOTION for Temporary Restraining Order and Expedited Discovery #7 , MOTION for Preliminary Injunction #8 by Attorney Ryan S. Post on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska.(Post, Ryan) |
| Filing 26 INDEX in opposition to MOTION for Temporary Restraining Order and Expedited Discovery #7 , MOTION for Preliminary Injunction #8 by Attorney Ryan S. Post on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska. (Attachments: #1 Affidavit Scott R. Frakes)(Post, Ryan) |
| Filing 25 TEXT ORDER granting Motion for Admission Pro Hac Vice #24 for attorney Nicholas J. Bronni. Ordered by Deputy Clerk. (KMG) |
| Filing 24 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC-3739252 by Attorney Nicholas J. Bronni on behalf of Defendant State of Nebraska.(Bronni, Nicholas) |
| Filing 23 TEXT ORDER granting Motion for Admission Pro Hac Vice #22 for attorney Dylan L. Jacobs. Ordered by Deputy Clerk. (KMG) |
| Filing 22 MOTION for Admission Pro Hac Vice Filing fee $ 100, receipt number ANEDC-3739218 by Attorney Dylan L. Jacobs on behalf of Defendant State of Nebraska.(Jacobs, Dylan) |
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Filing 21
ORDER - Upon application of a member of the press, IT IS HEREBY ORDERED that members of the press holding valid press credentials are authorized to bring laptops to the hearing scheduled for Friday, August 10, 2018, at 3:00 p.m., and are authorized to live tweet their personal descriptions of the proceedings. However, no one may record the proceedings by audio or video. Ordered by Senior Judge Richard G. Kopf. (CS)
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| Filing 20 NOTICE of Appearance by Attorney Danielle L. Jones on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska (Jones, Danielle) |
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Filing 19
ORDER - A hearing on Plaintiff's Motion for Temporary Restraining Order (Filing No. #7 ) will take place from 3:00 p.m. to 4:00 p.m. on Friday, August 10, 2018, in Courtroom No. 1, Robert V. Denney United States Courthouse and Federal Building, 100 Centennial Mall North, Lincoln, Nebraska. Counsel have requested, and the court has agreed, to issue a ruling on Plaintiff's Motion for Temporary Restraining Order from the bench at the conclusion of such hearing, to be supplemented by a written order if necessary. Ordered by Senior Judge Richard G. Kopf. (KLF)
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Filing 18
*EXPEDITED* LETTER BY CLERK that a transcript request was sent to General Reporting for transcription regarding Conference Call 16 . Transcript ordered by Senior Judge Richard G. Kopf. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E-GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (KLF)
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| Filing 17 AUDIO FILE. Court Date & Time [ 08/08/2018 12:46:11 PM ]. File Size [ 3557 KB ]. Run Time [ 00:14:49 ]. (Conference Call). (auto-docket). |
| Filing 16 TEXT MINUTE ENTRY for conference call proceedings held before Senior Judge Richard G. Kopf in Lincoln Courtroom #1 held on 8/8/2018. TRO hearing scheduled for Friday, 8/10/18 at 3:00 p.m. for one hour. There will be a ruling from the bench supplemented by a memo and order if necessary. Defendants to file a brief in opposition by late in day Thursday, 8/9/18. Appearance for Plaintiff: Mark A. Christensen and Nathan Clark; Defendants: Ryan S. Post, James D. Smith, and David A. Lopez. Courtroom Deputy: Colleen Beran; Court Reporter: Digital.Time Start: 2:59 p.m.; Time Stop: 3:12 p.m.; Time in Court: 13 Minutes. (CCB) |
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Filing 15
ORDER that the motion for Expedited Discovery (filing no. 7, part 2) is denied without prejudice. The motion for temporary restraining order (filing no. 7, part 1) remains pending and will be resolved expeditiously. Ordered by Senior Judge Richard G. Kopf. (CCB)
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| Filing 14 WAIVER OF SERVICE Returned Executed upon Scott Frakes defendant Scott Frakes. Waiver sent on 8/8/2018. (Christensen, Mark) |
| Filing 13 WAIVER OF SERVICE Returned Executed upon State of Nebraska defendant State of Nebraska. Waiver sent on 8/8/2018. (Christensen, Mark) |
| Filing 12 WAIVER OF SERVICE Returned Executed upon Nebraska Department of Correctional Services defendant Nebraska Department of Correctional Services. Waiver sent on 8/8/2018. (Christensen, Mark) |
| Filing 11 BRIEF in support of Plaintiff's Motion for Temporary Restraining Order and Expedited Discovery and Motion for Preliminary Injunction by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 10 ATTACHMENT - CONTINUED regarding Index #9 . by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 9 INDEX in support of Motion for Preliminary Injunction and Motion for Temporary Restraining Order by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 8 MOTION for Preliminary Injunction by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC.(Christensen, Mark) |
| Filing 7 MOTION for Temporary Restraining Order and Expedited Discovery by Attorney Mark A. Christensen on behalf of Plaintiff Fresenius Kabi USA, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B)(Christensen, Mark) |
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Filing 6
TEXT REASSIGNMENT ORDER - This matter is reassigned to Senior U.S. District Judge Richard G. Kopf as it is related to Case No. 4:99CV3263 and, additionally, in the interests of justice inasmuch as Judge Kopf is intimately familiar with the underlying matters. Ordered by Chief Judge Laurie Smith Camp. (DKM)
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| Filing 5 NOTICE of Appearance by Attorney James D. Smith on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska (Smith, James) |
| Filing 4 TEXT NOTICE OF JUDGES ASSIGNED: Judge Robert F. Rossiter, Jr. and Magistrate Judge Susan M. Bazis assigned. (LKO) |
| Filing 3 NOTICE of Appearance by Attorney David A. Lopez on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska (Lopez, David) |
| Filing 2 NOTICE of Appearance of Ryan S. Post by Attorney Ryan S. Post on behalf of Defendants Nebraska Department of Correctional Services, Scott Frakes, State of Nebraska (Post, Ryan) |
| Filing 1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number ANEDC-3737843), by Attorney Mark A. Christensen on behalf of Fresenius Kabi USA, LLC (Attachments: #1 Civil Cover Sheet, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F, #8 Exhibit G, #9 Exhibit H, #10 Exhibit I, #11 Exhibit J, #12 Exhibit K, #13 Exhibit L, #14 Exhibit M, #15 Exhibit N, #16 Exhibit O, #17 Exhibit P)(Christensen, Mark) (Additional attachment(s) added on 8/8/2018: #18 Exhibit D (corrected)) (LKO). |
| Filing 1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number ANEDC-3737843), by Attorney Mark A. Christensen on behalf of Fresenius Kabi USA, LLC (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P)(Christensen, Mark) (Additional attachment(s) added on 8/8/2018: # 18 Exhibit D (corrected)) (LKO). |
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