Free Motion for Extension of Time to File Response/Reply - District Court of California - California

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 1 of 16

1 WUFSBERG REESE COLVIG & FIRSTMAN PROFESSIONAL CORPORATION
2 H. James Wulfsberg - 046192

Mark A. Stup - 104942
3 Richard E. Elder - 205389

Kaiser Center
4 300 Lakeside Drive, 24th Floor

Oakland, CA 94612-3524
5 Telephone: (510) 835-9100

Facsimile: (510) 451-2170
6

Attorneys for Defendant 7 BLACK & VEATCH CORPORATION
8

9 10
11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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12 SAIGUT S.A. de C.V., a Mexican corporation; and SAIEM S.A., a French corporation,
Plaintiffs,
v.

No. 08 CV0478 JM BLM

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DECLARTION OF RICHARE. ELDER
IN SUPPORT OF EX PARTE APPLICATION TO EXTEND THE TIME FOR DEFENDANT BLACK & VEATCH CORPORATION TO RESPOND TO THE COMPLAINT BASED ON THE COURT'S APRIL 9, 2008 ORDER TO SHOW CAUSE

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SEMPRA ENERGY, a California corporation; ~* ~g~ 16 SEMPRA LNG, a Delaware corporation;
v.

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ENERGIA COSTA AZ, S. de R.L. de C.V.,
17 a Mexican corporation; BVT LNG COSTA AZUL, S. de R.L. de C.V., a Mexican 18 corporation; COSTA AZUL BMVT, S.A. de C.V., a Mexican corporation; BLACK & 19 VEATCH CORPORATION, a Delaware

~

corporation; TECHIT S.A. de C.V., a 20 Mexican corporation; THE KLEINELDER GROUP, INC., a Californa corporation; ARUP
21 NORTH AMERICA LIMITED, a United Kingdom corporation; ARUP TEXAS, INC., a 22 Texas corporation; WHESSOE OIL & GAS LIMITED, a United Kingdom corporation; Q &

23 S ENGINERIG, INC., a Californa
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corporation; and DOES 1 through 20, inclusive

Defendants.
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-02209591

Case No. 08cv0478 JM BLM Elder Dec!. iso Ex Part Application to Extend Time

Case 3:08-cv-00478-JM-BLM
1

Document 22-3

Filed 04/17/2008

Page 2 of 16

DECLARTION OF RICHAR E. ELDER

2
3 I, Richard E. Elder, declare:

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5

1. I am an attorney licensed to practice in the State of Californa. I am a Senior Attorney
with Wulfsberg Reese Colvig & Firstman Professional Corporation, counsel of record for

6 7
8

defendant Black & Veatch Corporation. I have personal knowledge of the facts set forth
in this Declaration and could and would competently testify thereto under oath if called as
a witness.
2. A tre and correct copy ofthe Cour's April

9 10

9 Order to Show Cause Why Complaint

Should Not Be Dismissed for Lack of Subject Matter Jursdiction is attached to this

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Declaration as Exhbit A.
3. A tre and correct copy of Ted Parker's April

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1, 2008 letter to James Wulfsberg is

attached as Exhbit B.
4. I have conferred with counsel for the other three defendants who have appeared in this

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matter, Sempra Energy, Sempra LNG and Kleinfelder Group. All three paries agree with
Black & Veatch that an extension is advisable.

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5. I also met and conferred with plaintiffs' counsel regarding the possibility of a stipulated

extension over the telephone on April 10 and in wrting on April 10 and April 11. A tre
and correct copy of my April 10 e-mail to plaintiffs' counsel, my April

~

11 follow-up and

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21

plaintiffs' counsel's response is attached as Exhbit C. Plaintiffs' counsel did not express
any definite opposition to an extension but stated that he was "not prepared to take a

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position" on the issue. Plaintiffs' counsel also stated that there is "not yet a great
urgency" to Black & Veatch's request for an extension.
6. In an April 15, 2008 e-mail, I informed plaintiffs' counsel of

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Black & Veatch's intention
Black & Veatch's application. A tre

to file the instant application and attached a copy of

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and correct copy of

that e-mail is attached as Exhibit D.

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-12209591

Case No. 08cv0478 JM BLM
Elder Decl. iso Ex Par Application to Extend Time

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 3 of 16

1 I declare under penalty of peijur under the laws of the State of Californa that the
2 foregoing is true and correct, and that this declaration was executed on April

15, 2008, at

3

Oakand, California.
April

4 DATED:
5

15, 2008

WUFSBERG REESE COLVIG & FIRSTMAN PROFESSIONAL CORPORATION

6 7
8

By lsi Richard E. Elder RICHA E. ELDER
Attorneys For Defendant BLACK & VEATCH CORPORATION

9 10

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-22209591

Case No. 08cv0478 JM BLM Elder Decl. iso Ex Part Application to Extend Time

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 4 of 16

Exhibit A

Case 3:08-cv-00478-JM-BLM

ase 3:08-cv-00478-JM-BLM Document 17 Filed 04/09/2008 Page 1 of 2

Document 22-3

Filed 04/17/2008

Page 5 of 16

1

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3

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5

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8

UNITED STATES DISTRICT COURT

9
10
11

SOUTHERN DISTRICT OF CALIFORNIA
SAIGUT S.A. de CV; SAIPEM S.A.,
Plaintiffs,
vs.

CASE NO. 08cv0478 JM(BLM)
ORDER TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION

12
13

14
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SEMPRA ENERGY, et aI., Defendant.

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On its own motion, the court issues this order to Plaintiffs to show cause why the

action should not be dismissed for lack of subject matter jurisdiction. Federal courts
are courts of limited jurisdiction. "Without jurisdiction the court cannot proceed at all

19

in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the
only function remaining to the court is that of announcing the fact and dismissing the
cause." Steel Co. v. Citizens for aBetter Environment, 523 U.S. 83,94 (1998) (quoting

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21

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23

Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)). Accordingly,
federal courts are under a continuing duty to confirm their jurisdictional power and are

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25

even "obliged to inquire sua sponte whenever a doubt arises as to (its) existence. . . ."
Mt. Healthy City Sch. Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274, 278 (1977) (citations
omitted).
Plaintiffs commenced this action alleging diversity jurisdiction pursuant

26 27

to 28

28

U.S.C. §1332(a)(2) (diversity jurisdiction exists between "citizens of a State and
- 1 -

08cv0478

Case 3:08-cv-00478-JM-BLM

ase 3:08-cv-00478-JM-BLM Document 17 Filed 04/09/2008 Page 2 of 2

Document 22-3

Filed 04/17/2008

Page 6 of 16

1 citizens or subjects of a foreign state). The court is concerned that it lacks subject
2 matter jurisdiction because, as alleged, this is an action between citizens of a foreign

3 state and citizens of other foreign states and United States citizens. See Craig v.

4 Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir. 1994) (court lacks diversity
5 jurisdiction between foreign plaintiff and foreign and domestic defendants).

6 The court requests that Plaintiffs, as the parties who have the burden to establish
7 diversity jurisdiction, see McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir.
8 2001), submit responsive briefing to this Order to Show Cause. Plaintiffs shall file and

9 serve the supplemental briefing by April 23, 2008. Defendants may file and serve a

10 response by May 2,2008. At that time, unless otherwise contacted by chamber's staff,
11 the matter wil be taken under submission pursuant to Local Rule 7.1(d)(1).

12 IT is SO ORDERED.
13 DATED: April 9, 2008
14
15
cc:

All paries
Magistrate Judge Major

16

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. Jeffre . ..... . .

~District Judge

Miler

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- 2-

08cv0478

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 7 of 16

Exhibit B

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 8 of 16

K&LIGATES

Kirkpatrick & Lockhart Preston Gates Ellis UP

55 Second Street . Suite 1700
San. Francisco, CA 94105-3493
T 415,882,8200

www.klgates.com

April 1, 2008

Ted

Parker

H. James Wulfsberg Wulfsberg Reese Colvig & Firstman
300 Lakeside Dr.

Oakland, CA 94612
Re: SaiGut S.A. de C. V, et al. v. Sempra Energy, et al.

Dear Mr. Wulfsberg:
that date attached none). You assert that the Complaint lacks. diversity of citizenship since foreign corporations are both plaintiffs and defendants. You ask how plaintiffs intend to establish federal jursdiction. Your March 28 letter arrved by u.s. mail (your email of

An exception to the alienage rule you cite is that, when an alien corporation is sued as the
alter ego of a domestic corporation, its citizenship, for diversity puroses, is determned
through the combined business of

the entities. See, e.g., Danjaq, s.A. v. Pathe
Danjaq, the Cour of Appeals subsidiary corporation) is where

Communications Corp (9th Cir. 1992) 979 F.2d 772,775. In stated thatthe "exception to this rule (separate domicile of the subsidiar is the alter ego of

the parent corporation. Under these circumstaces, courts

view the formal separateness between the two corporations as merely a legal fiction."

As you say, the Complaint indeed names alien corporations as defendants. But it also alleges their alter ego relationships with domestic corporate defendants, such as the relationship of BVT with Black & Veatch, that ofECA with Sempra, etc. I hope this answers your question. Please feel free to make any other comment.
Very truly yours,
KIRKPATRICK & LOCKHT PRESTON GATES ELLIS LLP

recParke
Robert Ted Parker

K:\1 I 575S4\OOOOl\1 J296_RTP\11296L2078

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 9 of 16

Exhibit C

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 1 of3 Page 10 of 16

Richard E. Elder
From: Parker, Ted (ted.parker(§klgates.com)
Sent: Monday, April

14, 2008 6:04 PM

To: Richard E. Elder
Cc: H. James Wulfsberg; Eric J. Firstman; Mark Stump; kmcdonnell(§sempra.com

Subject: RE: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension
Mr. Elder:
I regret that I am not prepared to take a position according your requested schedule, but I am mindful of your desire for an answer and 1 will endeavor to give that to you as soon as I am able. I note that, as of today, there are more than 3 weeks until you need file any papers other than the OSC papers, and so 1 am glad there is not yet a great urgency.

Regards,

redParke
Partner

K&L Gates
55 Second Street, Suite 1700 San Francisco, CA 94105

II (415) 882-8200 (general) 11(415) 882-8032 (direct)
Ji (415) 882-8220 (fax)

B ted.parkercæklgates.com

ww.klgates.com

This email contains information from K&L Gates LLP. The contents may be confidential and intended for addressee(s) only. Any disclosure, copying or use of this email by non-addressees is prohibited. If you

received this e-mail inerror.pleasecontactmeatted.parker~gates.com.

sent: Friday, April

From: Richard E. Elder (mailto:RElder(gWulfsfaw.com) 11, 2008 5:56 PM

To: Parker, Ted
Cc: H. James Wulfsberg; Eric J. Firstman; Mark Stump; kmcdonnell(gsempra.com Subject: RE: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension

Ted:
Would you please respond with your client's position regarding the extension discussed below no later than close of business on Monday?

Best Regards,
Rich

4/15/2008

Case 3:08-cv-00478-JM-BLM
Richard E. Elder, Esq. relder(ewulfslaw.com

Document 22-3

Filed 04/17/2008

Page 11 of 16

Page 2 of3

From: Richard E. Elder
sent: Thursday, April 10, 2008 4:55 PM
To: 'ted.parker(gklgates.com'

Cc: H. Jàmes Wulfsberg; Eric J. Firstman; Mark Stump; 'kmcdonnell(gsempra.com' Subject: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension

Ted:
Per your request, I write to follow up on our telephone conversation this morning in which I proposed a joint

motion requesting that all defendants' time to respond to the Complaint be extended 21 calendar days. This will
permit time for the Court to consider and rule on the pending jurisdictional Order to Show Cause ("OSC") before the defendants must submit responsive pleadings to Plaintiffs' complaint, which for Black & Veatch will be comprised of motion practice challenging certain non-jurisdictional aspects of the Complaint. Such motion practice would be rendered moot if the Court finds that it lacks subject matter jurisdiction over the case. We agree it is conceivable that the time schedule set by the OSC could reflect a considered judgment by the Cout to have the jurisdictional issue fully briefed by May 2, with other responsive pleadings, including motions,

continuing to be due on May 8. But the OSC itself is silent on that point. Plainly, the purpose of the Court's OSC
is to allow the Court to determine its own jurisdiction over the case, before it does anything else. With that purpose in mind, it seems likely that the Court would not require the parties to take action on nonjurisdictional issues while a decision on the jurisdictional question is pending.
As i explained in our conversation, the current schedule makes Black & Veatcl~ls and Sempra's response to the Complaint due on May 8, six days after defendants' response to plaintiffs' OSC briefing is due. To meet a May 8 filing deadline, Black & Veatch would have to begin work on motion papers well before May 2. In fact, there is a good chance that we wil not have a ruling on the subject matter jurisdiction issue before May 26 when plaintiffs' response to any Rule 12 motion would be due. The proposed extension could therefore avoid the needless preparation of four briefs (motions by Black & Veatch and Sempra and oppositions to each by plaintiffs) which could easily save the parties substantial attorney fees.

Contrary your suggestion during our call, we greatly doubt that the Court would perceive our proposed request for a scheduling order as second-guessing the scheduling aspect of the Court's OSC. We feel certain that it wil at least view the motion for a scheduling order as a reasonable proposal, even if the Court denies it or grants it in

modified form. i would be very surprised if Judge Miler would hesitate to either deny our motion or grant a
shorter (or longer) extension than the one we request if he believes that doing so would serve the ends of justice or judicial economy.
i propose that we bring the issues discussed above to the Court's attention in a joint motion, propose a potential solution in the form of a three-week extension and commit the issue to the Court's sound discretion.
Please let us know your clients' position on this issue as soon as possible.

Best Regards,
Rich

Richard E. Elder, Esq. relderßjwulfslaw.com

Wulfsberg Reese Colvig & Firstman Professional Corporation

4/15/2008

Case 3:08-cv-00478-JM-BLM
300 Lakeside Drive, 24th Floor Oakland, California 94612 (510) 835-9100 telephone (510) 451-2170 facsimile

Document 22-3

Filed 04/17/2008

Page 12 of 16

Page 3 of3

This communication is intended solely for the. benefit of the intended addressee (s) .
confidential information. If this message is received in error by anyone other than delete this communication from all records and advise the sender via electronic mail

This electronic message contains information from the law firm of Kirkpatrick & Lockhart Preston Gates Ellis LLP. The contents may be privileged and confidential and are intended for the use of the intended addressee(s) only. If you are not an intended addressee, note that any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this e-mail inerror.pleasecontactmeatted.parkenmklgates.com.

4/15/2008

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 13 of 16

Exhibit D

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 1 of3 Page 14 of 16

Richard E. Elder

From: Richard E. Elder
Sent: Tuesday, April 15, 2008 6:51 PM

To: 'Parker, Ted'
Cc: H. James Wulfsberg; Eric J. Firstman; Mark Stump; 'kmcdonnelltæsempra.com'

Subject: RE: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension
Attachments: Ex Parte Application.pdf

Ted:
As you know, it is important that this issue be resolved sooner rather than later for at least two reasons: First, to avoid unnecessary expenditure of our respective clients' time and money preparing Rule 12 briefing; and second to avoid any appearance that we have procrastinated in requesting an extension.

We therefore intend to move for additional time in which to respond. A copy of our papersare attached. I have spoken to the clerk who indicated that Judge Miller's preferred procedure is an ex parte application with no noticed hearing date. i am told that the Court wil examine the motion and either rule on it or set an appropriate briefing and/or hearing schedule. In other words, it is my understanding that at this time there is no hearing or response date and, if the Court chooses to set either or both, my assumption is that you will learn about it at the same time we do.
If you have questions or would like to discuss, please feel free to reply or call.

Best Regards;
Richard E. Elder, Esq. relder(Cwulfslaw.com

From: Parker, Ted (mailto:ted.parker(§klgates.com)
sent: Monday, April

14, 20086:04 PM

To: Richard E. Elder
Cc: H. James Wulfsberg; Eric J. Firstman; Mark Stump; kmcdonnell(§sempra.com Subject: RE: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension

Mr. Elder:
1 regret that I am not prepared to take a position according your requested schedule, but i am mindful of your I note that, as oftoday, there are more than 3 weeks until you need file any papers other than the OSC papers, and so I am glad there is not yet a great urgency.
desire for an answer and 1 wil endeavor to give that to you as soon as I am able.

Regards,

redParl:
Partner

K&L Gates
55 Second Street, Suite 1700 San Francisco, CA 94105 11(415) 882-8200 (general)

4/1512008

Case 3:08-cv-00478-JM-BLM
"(415) 882-8032 (direct)
,Q (415) 882-8220 (fax)

Document 22-3

Filed 04/17/2008

Page 2 of3 Page 15 of 16

B ted.parker(gk/gates.com

ww.k/gates.com

This email contains information from K&L Gates LLP. The contents may be confidential and intended for addressee(s) only. Any disclosure, copying or use of this email by non-addressees is prohibited. If you

received this e-mail inerror.pleasecontactmeatted.parker~klgates.com.

From: Richard E. Elder (mailto:RElder(gWulfslaw.com)

sent: Friday, April 11,20085:56 PM To: Parker, Ted
Cc: H. James Wulfsberg; Eric J. Firstman; Mark Stump; kmcdonnell(gsempra.com Subject: RE: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension

Ted:
Would you please respond with your client's position regarding the extension discussed below no later than close of business on Monday?

Best Regards,
Rich

Richard E. Elder, Esq. relder(gwulfslaw.com .

From: Richard E. Elder
sent: Thursday, April 10, 2008 4:55 PM
To: 'ted.parker(gklgates.com'

Cc: H. James Wulfsberg; Eric J. Firstman; Mark Stump; 'kmcdonnell(gsempra.com' Subject: SaiGut SA de C.V., et al v. Sempra Energy, et al. - motion for extension

Ted:
Per your request, I write to follow up on our telephone conversation this morning in which I proposed a joint motion requesting that all defendants' time to respond to the Complaint be extended 21 calendar days. This will permit time for the Court to consider and rule on the pending jurisdictional Order to Show Cause ("OSC") before the defendants must submit responsive pleadings to Plaintiffs' complaint, which for Black & Veatch will be comprised of motion practice challenging certain non-jurisdictional aspects of the Complaint. Such motion practice would be rendered moot if the Court finds that it lacks subject matter jurisdiction over the case. We agree it is conceivable that the time schedule set by the OSC could reflect a considered judgment by the Cout to have the jurisdictional issue fully briefed by May 2, with other responsive pleadings, including motions,

continuing to be due on May 8. But the OSC itself is silent on that point. Plainly, the purpose of the Court's OSC
is to allow the Court to determine its own jurisdiction over the case, before it does anything else. With that purpose in mind, it seems likely that the Court would not require the parties to take action on nonjurisdictional issues while a decision on the jurisdictional question is pending.
As i explained in our conversation, the current schedule makes Black & Veatch's and Sempra's response to the

4/15/2008

Case 3:08-cv-00478-JM-BLM

Document 22-3

Filed 04/17/2008

Page 3 of3 Page 16 of 16

Complaintdue on May 8, six days after defendants' response to plaintiffs' esc briefing is due. To meet a May 8 filing deadline, Black & Veatch would have to begin work on motion papers well before May 2. In fact, there is a good chance that we wil not have a ruling on the subject matter jurisdiction issue before May 26 when plaintiffs' response to any Rule 12 motion would be due. The proposed extension could therefore avoid the needless preparation of four briefs (motions by Black & Veatch and Sempra and oppositions to each by plaintiffs) which could easily save the parties substantial attorney fees.
Contrary your suggestion during our call, we greatly doubt that the Court would perceive our proposed request for

a scheduling order as second-guessing the scheduling aspect of the Court's esc. We feel certain that it wil at
least view the motion for a scheduling order as a reasonable proposal, even if the Court denies it or grants it in modified form. I would be very surprised if Judge Miller would hesitate to either deny our motion or grant à shorter (or longer) extension than the one we request if he believes that doing so would serve the ends of justice

or judicial economy.
I propose that we bring the issues discussed above to the Court's attention in a joint motion, propose a potential solution in the form of a three-week extension and commit the issue to the Court's sound discretion.
Please let us know your clients' position on this issue as soon as possible.

Best Regards,
Rich

Richard E. Elder, Esq. relder(âwulfslaw.com

Wulfsberg Reese Colvig & Firstman Professional Corporation 300 Lakeside Drive, 24th Floor Oakland, California 94612 (510) 835-9100 telephone (510) 451-2170 facsimile

This communication is intended solely for the benefit of the intended addressee (s) .
confidential information. If this message is received in error by anyone other than delete this communication from all records and advise the sender via electronic mail

This electronic message contains information from the law firm of Kirkpatrick & Lockhart Preston Gates Ells LLP. The contents may be privileged and confidential and are intended for the use of the intended addressee(s) only. If you are not an intended addressee, note that any disclosure, copying, distribution, or use of the contents of this
message is prohibited. If you have received this e-mail in error, please contact me atted.parkercæklgates.com.

4/15/2008