Free Response in Opposition to Motion - District Court of California - California

Case 3:08-cv-00037-H-WMC

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Filed 04/21/2008

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1 STEPHEN DANZ & ASSOCIATES STEPHE F. DANZ SBN 68318 2 ([email protected]) MARCUS JACKSON SBN 205792 3 ([email protected]) 1550 HOTEL CIRCLE NORTH, SUITE 170 4 SAN DIEGO, CA 92108 TEL: (619) 297-9400 5 FAX: (619) 297-9444 6 Attorney for Plaintiff JAMES RICHARD STIEFEL 7 8 9 10 11 12 JAMES RICHARD STIEFEL, an individual; 13 14 v. 15 BECHTEL CORPORATION, a Corporation; BECHTEL CONSTRUCTION COMPANY, 16 a Corporation; and DOES 1 through 100, INCLUSIVE, 17 Defendants. 18 19 20 21 22 I, Marcus Jackson, Esq., declare: 1. I am an attorney at law duly licensed to practice before this Court and am employed Plaintiff, CASE NO.: 08 CV 0037 H (WMc) DECLARATION OF MARCUS JACKSON, ESQ. IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND/OR TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT AND REQUEST FOR SANCTIONS Judge: The Honorable Marilyn L. Huff Court: Courtroom 13, 5th Floor Date: May 5, 2008 Time: 10:30 a.m. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

23 by Stephen Danz & Associates (formerly Danz & Gerber) counsel of record for Plaintiff JAMES 24 RICHARD STIEFEL. The following statements are based upon my personal knowledge. If called 25 upon to do so, I would competently testify to them. I submit this declaration in support of 26 Plaintiff's Opposition to Defendant's Motion to Dismiss and/or to Strike the First Amended 27 Complaint and for Sanctions. 28 1. DECL. OF MARCUS JACKSON, ESQ. IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

Case 3:08-cv-00037-H-WMC

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Filed 04/21/2008

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2.

This matter, case number 08CV0037, was initially filed by Plaintiff in the Superior

2 Court of San Diego County, North County Division, in November 2007. In January 2008 3 Defendant removed this action to this Court. Defendant's Notice of Removal, which appears as 4 entry number one on the electronic docket for this case, included Plaintiff's Complaint that had 5 been filed in the Superior Court but did not attach the various pages that were attached as Exhibit A 6 to the Complaint. These pages include charges and correspondence between Plaintiff and the 7 EEOC and inter alia show that Plaintiff first filed a charge of discrimination with the EEOC in 8 January 2008. 9 3. Defendants, apparently looking to correct this defect, submitted a Notice Regarding

10 Exhibit, which indicated that Exhibit A to the Complaint in Superior Court had been omitted from 11 the Notice of Removal and included the missing papers. This Notice Regarding Exhibit and 12 attachment is entry number four on the electronic docket for this case. 13 4. A mere four days after the Notice Regarding Exhibit was filed, Defendants filed a

14 Motion to Dismiss along with a Request for Judicial Notice that included several exhibits 15 Defendants asked the Court to consider in reviewing the motion. Inexplicably Defendants attached 16 the admittedly incomplete Complaint, missing exhibit A, as Exhibit E to their Request for Judicial 17 Notice in Support of the Motion to Dismiss filed in January 2008. 18 5. Moreover, Defendants went ahead and selectively attached a portion of the missing

19 Complaint exhibit A, two pages showing a supplemental EEOC filing in March 2007, as Exhibit F 20 to their Request for Judicial Notice. The Request for Judicial Notice and exhibits thereto are part of 21 docket entry number five on the electronic docket for this case. As the complete exhibit A to the 22 initial Complaint shows, Plaintiff first field with the EEOC in January 2007 and submitted a 23 supplemental statement in March 2007. To make this clear Plaintiff has separated the former 24 Exhibit A into three separate exhibits in the First Amended Complaint. 25 / / / 26 / / / 27 / / / 28 2. DECL. OF MARCUS JACKSON, ESQ. IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc)

Case 3:08-cv-00037-H-WMC

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Filed 04/21/2008

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I declare under penalty of perjury under the laws of the United States of America that the

2 foregoing is true and correct and that this declaration was executed on April 21, 2008, at San Diego, 3 California. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. DECL. OF MARCUS JACKSON, ESQ. IN OPPOSITION TO MOT. TO DISMISS/STRIKE 08 CV 0037 H (WMc) /s/ Marcus Jackson__________ MARCUS JACKSON, ESQ.