Free Motion for Extension of Time to File Answer - District Court of California - California

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

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Filed 04/15/2008

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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
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Attorneys for Defendant 7 BLACK & VEATCH CORPORATION
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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 SAIEM S.A.; a French corporation,
Plaintiffs,
v.

No. 08 CV 0478 JM BLM

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SEMPRA ENERGY, a Californa corporation;

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

~ ~ ~~~ 16 SEMPRA LNG, a Delaware corporation;

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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; TECHINT S.A. de C.V., a 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

23 S ENGINERIG, INC., a Californa
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LIMITED, a United Kigdom corporation; Q &
corporation; and DOES 1 through 20, inclusive
Defendants.

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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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TO ALL PARTIES AN THEIR ATTORNYS OF RECORD:
Please take notice that Defendant Black & Veatch Corporation ("Black & Veatch") hereby
applies ex parte for an order extending the time in which it must respond to the Complaint until 21
days

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after the Cour's ruling on the pending Order to Show Cause Why Complaint Should Not Be

Dismissed for Lack of Subject Matter Jursdiction ("OSC"). This Motion is made pursuant to

6 Southern Distrct Local Rule 12.1 and should be granted for at least six reasons: 7
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1. The plain intent of

the OSC isto allow the Cour to determine whether it has subject

matter jursdiction over this case before the parties or the Cour commt resources to
litigating it.
2. Black & Veatch's responsive pleading - which wil consist of a motion to dismiss under

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Rule 12 - is curently due on May 8,2008.
3. The OSC wil not be fully briefed until May 2, 2008.
4. Ifleft unchanged, the curent deadline for defendants' Rule 12 motion(s) guarantees

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that defendants will be forced to spend money briefing challenges to a Complaint in a

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case where there is, at a minimum, a substantial controversy about the Cour's

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jursdiction.
5. The curent deadline raises the possibility that plaintif wil have to prepare and file
Rule 12 oppositions in support of

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the curent Complaint, which will also likely be

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rendered moot by the Cour's ruling on the OSC.

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6. Black & Veatch has met and conferred with all paries that have appeared in the case to
date; only plaintiffs have not agreed to a stipulated extension of

Black & Veatch's time

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to fie a Rule 12 motion.
This motion is based on this notice of motion and motion, the attached declaration of

24 Richard Elder and supporting exhbits, all pleadings and papers on file in this action and such
25 arguent and evidence as may be presented at any hearing requested by the Court.

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1 DATED: April 15, 2008
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WUFSBERG REESE COLVIG & FIRSTMA
PROFESSIONAL CORPORATION

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

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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"),l "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 Cour's apparent desÌre to see the jursdictional issue fully briefed and decided before the
9 parties spend additional time and money litigating in this forum.

10 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
13 three weeks after the Court rules on the OSC to avoid the expense of

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preparing potentially

. fß ~ &l=~"'§. 14 unecessary briefing while awaiting the Court's ruling on the OSc. Good cause, specifically the

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15 conservation of

parties' resources and

judicial economy, supports this request and Black & Veatch
unsuccessful effort to

16 has met and conferred with all parties who have appeared in the action in an

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17 secure a stipulation.

18 II.

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 Jurisdictional 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 jursdiction. See O'Hare Intern. Bank v.
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24 1 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 of their intentions but the fact that the Sempra entities sought an extension of tie in which to respond to the Complaint suggests that, lie Black & ths is correct, an extension of defendants' time to respond wil prevent 26 Veatch, they plan to fie Rule 12 motions. . If the needless preparation of three motions (one by Black & Veatch, one by Semprà Energy and one by Sempra LNG).
27 3 Defendants' briefing regarding the OSC is not due until May 2. It is therefore unely that the OSC wil be decided by May 8 and impossible that the OSC wil be decided before Black & Veatch begins to prepare its motion.

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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 hearing of

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the defenses specified therein prior to tral.

By targeting early resolution of threshold issues, FRCP 12( d) can be an excellent device for

4 conserving time, expense, and scarce judicial resources . . . ")
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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
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defendants no less than six corporations which plaintifs affrmatively allege are incorporated in
and/or have principal places of

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business in foreign countries:

· Energia Costa Azul, S. de RL. de C.V., (Mexico) (Complaint at ir5);
· Costa Azul BMVT, S.A. de C.V. (Mexico) (Complaint at ir6);

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· Techint S.A. de C.V. (Mexico) (Complaint at ir8); · BVT LNG Costa Azul, S. de RL. de C.V. (Mexico) (Complaint at ir9);
· Amp North America Limited (United Kingdom) (Complaint at ir11); and
· Whessoe Oil & Gas Limited (United Kingdom) (Complaint at ir12).
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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17 of incorporation outside the United States is suffcient to destroy diversity. Faysound Limited v.
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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. Ifthe alien defendant is
21 indispensable, Boeing clearly implies, there is no jursdiction at alL") 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. (Exhbit B to Elder DecL) This

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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 offices in Saint Quenti-en-Yvelies, 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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1 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 jurisdiction; and (iii) even if

the citizenship of a parent could be imputed to the

4 subsidiar, the citizenship of one alleged stockholder in a company cannot 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 parties' responses to the OSC, and decided by the Court thereafter.

11 III.

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

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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, if

the 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 jurisdiction.. In order to file a Rule
22 12 motion on May 8, Black & Veatch will 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.

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27 6 Paragraph 12 alleges that "Whessoe Oil & Gas Limited ("Whessoe") is a corporation formed under United Kingdom

law, with offces at Prices Gate, London, U.K."

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1 In the more likely scenario that the Court holds the matter llder consideration for four or

2 more cour days, defendants would be forced to complete and file their Rule 12 motions before
3 receiving a ruling on the jursdictional Order to Show Cause. In fact, given the Cour'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 Cour rules on the OSc.

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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 ~ 4.) All three parties agree with Black & Veatch that an extension is advisable.8 (Id.) Counsel

;;~oc~;g~ fß~~~~=s§. 14 stipulated extension over the telephone on April 10 and in wrting on April 10 and April 11. (Elder

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13 for Black & Veatch also met and conferred with plaintiffs' counsel regarding the possibility of a

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16 an extension but stated that he was "not prepared to take a position" on the issue. (Ex. C to Elder

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17 Decl.) Plaintiffs' counsel also stated that there is "not yet a great urgency" (id.) which is curous
18 since even now, Black & Veatch cannot seek additional time by a motion on statutory time before

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19 the May 8 deadline for Black & Veatch's Rule 12 motion.

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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 until 21 days after a ruling on the OSc.

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26 7 Motions fied on May 8 would be noticed for hearig on June 9. Oppositions would be due May 23 (May 26 is a holiday and Local Rule 7. 1 (e)(2) requires oppositions "not later than 14 calendar days prior to the noticed hearig"). answered. Counsel for Kleinfelder 27 8 The issue is less relevant to Kleinfelder because Kleinfelder has already nonetheless agreed to the proposed extension. (See Elder Decl. at '4.)

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1 DATED: April 15,2008
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WULFSBERG REESE COLVIG & FIRSTMA PROFESSIONAL CORPORATION

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By lsi Richard E. Elder RICHAR E. ELDER
Attorneys For Defendant.

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BLACK & VEATCH CORPORATION

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