Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-00045-BTM-CAB

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Filed 04/01/2008

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Timothy G. McNulty, Esq. (# 159227) MILBERG & DE PHILLIPS, P.C. 2163 Newcastle Avenue, Ste. 200 Cardiff by the Sea, CA 92007 Telephone: (760) 943-7103 Facsimile: (760) 943-6750 Email: [email protected] Attorneys for Defendant, MIRA MESA MARKETPLACE EAST, LLC

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

OUTERBRIDGE ACCESS ASSOCIATION, SUING ON BEHALF OF DIANE CROSS; and DIANE CROSS, An Individual,

) ) ) ) ) Plaintiffs, ) ) vs. ) ) ROSS DRESS FOR LESS, INC. d.b.a. ) ROSS DRESS FOR LESS #478; MANNA ) DEVELOPMENT GROUP, LLC. D.b.a. ) PANERA BREAD #4279; MIRA MESA ) MARKETPLACE EAST, LLC and DOES ) 1 THROUGH 10, Inclusive, ) ) Defendants. ) ) ) I, Timothy G. McNulty declare as follows: 1.

Case No.: 08 CV 0045 BTM CAB DECLARATION OF TIMOTHY G. MCNULTY IN REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS [FRCP §§ 12(b)(1); 28 U.S.C. 1367(c)] Complaint Filed: January 8, 2008 Date: April 11, 2008 Time: 11:00 a.m. Judge: Hon. Barry Ted Moskowitz Courtroom: 15 NO ORAL ARGUMENT UNLESS REQUESTED BY COURT

I have personal knowledge of all the matters stated herein and, if called as a

witness, I could competently testify thereto, except as to those matters stated upon information and belief, and as to those matters, I believe them to be true. I am an attorney at law, duly admitted to practice before the courts of the State of California and the United States District Court for the Southern District of California, and an attorney at the law firm of Milberg & DePhillips, attorneys of record for Defendant MIRA MESA MARKETPLACE EAST, LLC the above matter. 1

Case 3:08-cv-00045-BTM-CAB

Document 8-2

Filed 04/01/2008

Page 2 of 2

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Plaintiffs filed two separate but identically pleaded ADA complaints against

shopping centers operated by Defendant entitled Outerbridge Access Association/Diane Cross vs. Mira Mesa Market Place West, LLC.; Home Depot U.S.A. Case No.:08 CV 0046 JM JMA and Outerbridge Access Association/Diane Cross vs. Mira Mesa Market Place East; Ross Dress for Less,, LLC. et. al. Case No.: 08 CV 0045 BTM CAB. The two shopping centers neighbor each other and are divided by Westview Parkway Road, in San Diego California. 3. On February 12, 2008, Defendant Mira Mesa Marketplace filed similar Motions

to Dismiss State law claims in both cases. In the Mira Mesa West case, Plaintiffs decided to amend their complaint dismissing all State law claims. Attached hereto as Exhibits "A" and "B" are true and correct copies of Plaintiff Outerbridge Access' Opposition to Defendants Motion to Dismiss Supplemental State Law Claims and the Court's Order Granting Motion to Amend in Outerbridge Access Association/Diane Cross vs. Mira Mesa Market Place West, LLC.; Home Depot U.S.A. Case No.:08 CV 0046 JM JMA . 4. In another recent ADA case filed against Defendant Mira Mesa Marketplace

West, Kohler vs. Mira Mesa Marketplace East, et al, No. 06CV2399 WQH (POR), (SD Cal. June 4, 2007.), the Court recently dismissed the State law claims from Plaintiff's complaint. In that case, Plaintiff Kohler decided to dismiss his entire case, reserving the right the re-file both State and Federal law claims in San Diego Superior Court. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct and that this declaration was executed on April 1, 2008 at Cardiff, California.

/s/ Timothy G McNulty ______________________________ TIMOTHY G. MCNULTY

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