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

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

Document 22-2

Filed 04/17/2008

Page 1 of 6

1 WUFSBERG REESE COLVIG & FIRSTMA
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

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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

No. 08 CV 0478 JM BLM

~ ~ëñ;2ëñUiE rlo!Q~~o SEMPRA ENERGY, a Californa corporation; ~~ ~g~ 16 SEMPRA LNG, a Delaware corporation; 00: :5..1~ a. g ¡; ENERGIA COSTA AZL, S. de R.L. de C.V., ~ '" êi 17 a Mexican corporation; BVT LNG COSTA i: rl 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; TECHINT S.A. de C.V., a

MEMORADUM OF POINTS AND AUTHORITIES 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 CAUSE
SHOW

20 Mexican corporation; THE KLEINELDER
GROUP, INC., a California 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
24

corporation; and DOES 1 through 20, inclusive
Defendants.
25

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2209547

Case No. 08cv0478 JM BLM Ex Parte Application to Extend Time

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

Document 22-2

Filed 04/17/2008

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1 MEMORADUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 As the Cour correctly noted in its April

9, 2008 Order to Show Cause Why Complaint

4 Should Not Be Dismissed for Lack of Subject Matter Jursdiction ("OSC"), i "as alleged, this is an

5 action between citizens of a foreign state and citizens of other foreign states and United States
6 citizens." It is Black & Veatch's position that plaintiffs can neither explain away nor cure the
7 jursdictional defects which appear on the face of

the Complaint. Black & Veatch therefore shares

8 the Court's apparent desire to see the jursdictional issue fully briefed and decided before the
9 paries spend additional time and money litigating in this forum.
1 0 Black & Veatch submits that its curent deadline to respond to the Complaint, May 8,
11 guarantees that it wil have to begin to prepare its Rule 12 motion2 before the OSC is decided.3

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12 Black & Veatch therefore requests that its deadline to respond to the Complaint be extended until

~§ g~o 13 three weeks after the Court rules on the OSC to avoid the expense of preparing potentially c,1- Lt\õS! .. ~ :i~ 'l ~oo:i-O\'" 13.. ~l!~..i: 14 unecessary briefing while awaiting the Cour's ruling on the OSC. Good cause, specifically the gOOZw~ô ltu~~~O!2 o ~~ffce:~ judicial economy, supports this request and Black & Veatch
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15 conservation of paries' resources and

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16 has met and conferred with all paries who have appeared in the action in an unsuccessful effort to

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17 secure a stipulation.

18 II.
19

THE COURT SHOULD DETERMINE ITS JURISDICTION OVER THIS MATTER

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BEFORE THE PARTIES OR THE COURT COMMIT RESOURCES TO

20 LITIGATING IT.
21 Jursdictional challenges should

be resolved early in a case, before the parties and the Cour

22 expend time and money litigating in a foru which lacks jurisdiction. See O'Hare Intern. Bank v.
23

24

i A copy of the OSC is attached as Exhbit A to the concurently-fied Declaration of

Richard Elder.

25 2 Black & Veatch does not speak for Sempra Energy or Sempra LNG and is uncertain oftheIr intentions but the fact
that the Sempra entities sought an extension of

tie in which to respond to the Complaint suggests that, like Black &

ths is correct, an extension of defendants' tie to respond will prevent 26 Veatch, they plan to fie Rile 12 motions. If the needless preparation of three motions (one by Black & Veatch, one by Sempra Energy and one by Sempra LNG).
27 3 Defendants' briefing regarding the OSC is not due until May 2. It is therefore unikely that the OSC wil be decided

by May 8 and impossible that the OSC will be decided before Black & Veatch begins to prepare its motion.

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Case No. 08cv0478 JM BLM Ex Parte Application to Extend Time

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

Document 22-2

Filed 04/17/2008

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1

Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971); See also 27A Fed. Proc., L. Ed. § 62:396 ("The
emphasis ofFRCP 12(d) is in directing the hearng of

2
3

the defenses specified therein prior to tra1.

By targeting early resolution of

threshold issues, FRCP 12(d) can be an excellent device for

4 conserving time, expense, and scarce judicial resources. . .")
5
The Cour's OSC is based on the Cour's observation that the face of

the Complaint

6 demonstrates an apparent absence of diversity of citizenship.4 Specifically, the Complaint alleges

7 that plaintiffs SaiGut and Saipem are both alien corporations5 and plaintiffs have named as
8
defendants no less than six corporations which plaintifs affrmatively allege are incorporated in
and/or have principal places of

9 10

business in foreign countres:

. Energia Costa Azul, S. de RL. de C.V., (Mexico) (Complaint at if5);

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· Costa Azul BMVT, S.A. de C.V. (Mexico) (Complaint at if6);

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· Techint S.A. de C.V. (Mexico) (Complaint at if8);

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· BVT LNG Costa Azul, S. de RL. de C.V. (Mexico) (Complaint at if9);

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· Amp North America Limited (United Kingdom) (Complaint at ifll); and
· Whessoe Oil & Gas Limited (United Kingdom) (Complaint at ifI2).
The presence of even a single defendant with either a principal place of

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business or a place

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of

incorporation outside the United States is suffcient to destroy diversity. Faysound Limited v.

United Coconut Chemicals, Inc., 878 F.2d 290 (9th Cir. 1989) ("Where an alien is made co-

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19 defendant with a citizen-defendant by an alien plaintiff, (Cheng v. Boeing, 708 F.2d 1406, 1412

20

(9th Cir. 1983)) is dispositive: there is no jursdiction over the alien. If

the alien defendant is

21 indispensable, Boeing clearly implies, there is no jursdiction at al1.") Plaintiffs have stated that

22 they believe that diversity jursdiction exists because they have alleged that some of the foreign
23 defendants are the alter ego of some domestic defendants. (Exhibit B to Elder Decl.) This

24
25 4 Even if plaintiffs could allege that diversity exists, the Cour should dismiss the action uness plaintiffs can also
the Complaint alleges that "SaiGut S.A. de C.V. ("SaiGut") is a corporation formed under Mexican law with its business in Ensenada, Baja Californa, Mexico." Paragraph 2 alleges that "Saipem S.A. ("Saipem") is a 27 corporation formed under French law, with offces in Saint Quenti-en-Yvelines, France."

26 prove it. Commodity Trend Service, Inc. v. Commodity Futures Trading Comm 'n, 149 F.3d 679,685 (7th Cir. 1998). 5 Paragraph 1 of

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Case No. 08cv0478 JM BLM Ex Parte Application to Extend Time

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

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Filed 04/17/2008

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I arguent is incorrect for at least three reasons: (i) Black & Veatch is not the alter ego of any
2 defendant; (ii) even accurate alter ego allegations (which plaintiffs' are not) do not support
3 diversity jursdiction; and (iii) even if

the citizenship' of a parent could be imputed to the

4 subsidiary, the citizenship of one alleged stockholder in a company canot be imputed to another

5 alleged stockholder. However, for the time being the Cour need not consider any of these defects.

6 It is sufficient to note - as the Cour apparently has - that the paries are unquestionably not
7 diverse because plaintiffs allege that Whessoe is a foreign corporation6 and they do not allege that

8 Whessoe is the alter ego of any other defendant. At a bare minimum, there is a very substantial

9 controversy over whether diversity jursdiction exists in this case - an issue that wil be fully
10 briefed through the paries' responses to the OSC, and decided by the Cour thereafter.

11 III.
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THE CURRNT DEADLINE FOR BLACK & VEATCH'S RULE 12 MOTION

12

GUARTEES THAT THE PARTIES WILL BE FORCED TO WASTE MONEY
BRIEFING CHALLENGES TO A COMPLAINT OVER WHICH THE COURT
LACKS JURISDICTION.
Black & Veatch's Rule 12 motion is curently due on May 8,2008 and, as discussed above,

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17 plaintiffs were to receive leave to amend, Rule 12 motions based on the curent Complaint would
18 have to be rewritten and re- filed to challenge any amended complaint.

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Thus, ifthe deadline for Black & Veatch's Rule 12 motion remains May 8, there is no

20 question that Black & Veatch wil be forced to expend substantial time and money briefing a Rule
21 12 motion in a case over which the Cour lacks subject matter jursdiction. In order to file a Rule
22 12 motion on May 8, Black & Veatch wil have to begin preparing its brief

in late ApriL. The OSC

23 will not be fully briefed until Friday, May 2 so, even if the Cour were to rule on the OSC the cour
24 day after it is fully briefed (May 5) Black & Veatch would have already been forced to spend
25 substantial time and money preparing its Rule 12 motion.

26
27 6 Paragraph 12 alleges that "Whessoe Oil & Gas Limted ("Whessoe") is a corporation formed under United Kigdom law, with offces at Prices Gate, London, U.K."

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Case No. 08cv0478 JM BLM Ex Parte Application to Extend Time

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

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1 In the more likely scenaro that the Cour holds the matter under consideration for four or

2 more cour days, defendants would be forced to complete andfile their Rule 12 motions before

3 receiving a ruling on the jurisdictional Order to Show Cause. In fact, given the Court's caseload,
4 the matter might remain under submission until May 23, when plaintiffs' oppositions to

5 defendants' Rule 12 motions would be due. 7 Thus, there is a good possibility that plaintiffs wil
6 also be forced to waste time and money preparng their oppositions to Rule 12 motions before the
7 Court rules on the OSC.

8 iv.
9
10

BLACK & VEATCH HAS MET AND CONFERRD IN AN ATTEMPT TO
SECURE A STIPULATION.
Counsel for Black & Veatch has conferred with counsel for the other three defendants who

11 have appeared in this matter, Sempra Energy, Sempra LNG and Kleinfelder Group. (Elder DecL at
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12 if 4.) All three paries agree with Black & Veatch that an extension is advisable.8 (Id.) Counsel

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13 for Black & Veatch also met and conferred with plaintiffs' counsel regarding the possibility of a
14 stipulated extension over the telephone on April

1 0 and in wrting on April 10 and April 11. (Elder

~~ ~g~ 16 an extension but stated that he was "not prepared to take a position" on the issue. (Ex. C to Elder O~ g~ ~ a.:5..i17 Decl.) Plaintiffs' counsel also stated that there is "not yet a great urgency" (id.) which is curous i:
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18 since even now, Black & Veatch canot seek additional time by a motion on statutory time before
19 the May 8 deadline for Black & Veatch's Rule 12 motion.
20 V.
21

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CONCLUSION
Good cause supports an extension of

Black & Veatch's time to respond to the Complaint.

22 Black & Veatch respectfully requests that the Cour continue Black & Veatch's deadline to
23 respond unti121 days after a ruling on the OSC.

24
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26 7 Motions filed on May 8 woild be noticed for hearig on June 9. Oppositions would be due May 23 (May 26 is a
27 8 The issue is less relevant to Kleine1der because K1einelder has already answered. Counsel for K1einelder nonetheless agreed to the proposed extension. (See Elder Decl. at '4.)
holiday and Local Rile 7.1 (e )(2) requies oppositions "not later than 14 calendar days prior to the noticed hearig").

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-42209547

Case No. 08cv0478 JM BLM Ex Parte Application to Extend Time

Case 3:08-cv-00478-JM-BLM
DATED: Apri115,2008

Document 22-2

Filed 04/17/2008

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1

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3

WUFSBERG REESE COLVIG & FIRSTMA
PROFESSIONAL CORPORATION

4

By
5

lsI Richard E. Elder

RICHA E. ELDER
Attorneys For Defendant BLACK & VEATCH CORPORATION

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Case No. 08cv0478 JM BLM Ex Parte Application to Extend Time