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

Case 3:08-cv-00450-IEG-WMC

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Filed 06/06/2008

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KAREN P. HEWITT United States Attorney ERNEST CORDERO, JR. Assistant U.S. Attorney State of California Bar No. 131865 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 557-7473 Email: [email protected] Attorneys for Defendants United States of America; United States Attorney's Office for the Southern District of California; Immigration and Customs Enforcement; Karen Hewitt and William Hall UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA 11 PAUL J. BLAZEVICH and E. BLAZEVICH, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Not all of the federal entities named in the Complaint are subject to suit. An appropriate jurisdictional challenge will be raised in a subsequent motion.
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) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, an entity;) UNITED STATES ATTORNEY'S OFFICE FOR) THE SOUTHERN DISTRICT OF CALIFORNIA,) a government entity; IMMIGRATION AND) CUSTOMS ENFORCEMENT, a government) entity; KAREN HEWITT, in her individual) capacity and as United States Attorney for the) Southern District of California; BARBARA) MAJOR-GLUCK, in her individual and former) capacity as Assistant United States Attorney;) MICHAEL FOSTER, in his individual and) capacity as United States Customs Agent;) WILLIAM A. HALL, in his individual and capacity) as Assistant United States Attorney; and DOES) 1 through 20 inclusive, ) ) Defendants. ) ______________________________________)

Case No. 08cv0450-IEG (WMc)

EX PARTE APPLICATION FOR ORDER ESTABLISHING DEADLINE TO FILE RESPONSE TO COMPLAINT

Hon. Irma E. Gonzalez

The United States of America, United States Attorney's Office for the Southern District of California, Immigration and Customs Enforcement, Karen Hewitt and William Hall ("Defendants") apply ex parte for an order establishing a deadline for them to answer, respond or otherwise plead to the Complaint. The basis for this application is set forth below.1/

Case 3:08-cv-00450-IEG-WMC

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I. GOOD CAUSE EXISTS FOR THE COURT TO ESTABLISH A DEADLINE FOR A RESPONSE TO THE COMPLAINT Plaintiff filed this suit on March 11, 2008. (See Complaint, Clerk's Docket No. 1.) The case arises, in part, out of Plaintiff Paul J. Blazevich's conviction for crimes involving Internet child pornography. (Complaint, ¶ 16.) The fifty-page Complaint alleges fifteen claims, most of which are brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, et. seq. or Bivens.2/ (Complaint, ¶ 1.) Named as defendants are the United States and various federal entities. Plaintiffs also have brought both individual and official capacity claims against United States Attorney Karen P. Hewitt, Assistant United States Attorney William Hall, Magistrate Judge Barbara L. Major (based on actions taken in her former capacity as Assistant United States Attorney) and Customs Agent Michael Foster. (Complaint, ¶¶ 8-11.) On the day Plaintiffs filed this suit, copies of the Complaint enclosed in envelopes with the names of Karen Hewitt and William Hall written on them were left with security guards at the U.S. Attorney's Office in San Diego. Although it is unclear, this may have been done in an attempt to serve the Complaint. However, no certificates of service have been filed with the Court. Because this case involves individual capacity claims, authority to represent Karen Hewitt, Barbara Major and William Hall had to be obtained from the Department of Justice. Final arrangements necessary for their representation were completed within the last two weeks. Additionally, the Department of Justice has not yet approved individual capacity representation for Michael Foster. Furthermore, Special Assistant U.S. Attorney Robert I. Lester, who represents Barbara Major, was not appointed a Special Assistant U.S. Attorney for the Southern District of California until this week. ///

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court established an implied private right of action against federal officials for tortious deprivations of constitutional rights. Bruns v. National Credit Union Administration, 122 F.3d 1251, 1255 (9th Cir. 1997). 2
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Case 3:08-cv-00450-IEG-WMC

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At this time, Defendants are beginning the process of obtaining information necessary for the defense of this case. However, based on a review of the Complaint, Defendants also anticipate filing comprehensive motions attacking the Complaint on a variety of grounds. Under the circumstances, Defendants respectfully request that the Court issue an order granting them 90 days from the date of the order to file a response to the Complaint. The 90-day period will allow counsel time to develop facts relevant to this case and prepare appropriate responses to the very lengthy Complaint. Setting the deadline also will eliminate the uncertainty regarding the time to respond which has been created by the failure of Plaintiffs to file certificates of service. The amount of time also is reasonable because the United States, its agencies and employees ordinarily are allowed 60 days to respond to a complaint after service on the United States Attorney. See Fed R. Civ. P. 12(a). In this case, service on the United States Attorney has not yet been effectuated because the guards at the U.S. Attorney's Office are not individuals authorized to accept service of process on behalf of the United States Attorney. See Fed. R. Civ. P. 4(i)(1) (setting forth individuals authorized to accept service). Finally, allowing 90 days will permit the Department of Justice adequate time to review Michael Foster's request for representation. II. CONCLUSION For the foregoing reasons, the United States of America, United States Attorney's Office for the Southern District of California, Immigration and Customs Enforcement, Karen Hewitt and William Hall respectfully request the Court to order that they shall have 90 days to answer, plead or otherwise respond to the Complaint. DATED: June 6, 2008 KAREN P. HEWITT United States Attorney s/ Ernest Cordero, Jr.

25 26 27 28 ERNEST CORDERO, JR. Assistant U.S. Attorney Attorneys for Defendants United States of America; United States Attorney's Office for the Southern District of California; Immigration and Customs Enforcement; Karen Hewitt and William Hall 3
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Case 3:08-cv-00450-IEG-WMC

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Filed 06/06/2008

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