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

Case 3:07-cv-02432-H-LSP

Document 18

Filed 08/26/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9

GIOVANNIELLO & MICHELS, LLP Alexander F. Giovanniello (CSB# 125562) Karen A. Bocker (CSB #213764) 1470 South Valley Vista Drive, Suite 200 Diamond Bar, California 91765 Email: [email protected] Ph: (909) 396-1964 Fax (909) 396-0885 Attorneys for DEFENDANT THC ORANGE COUNTY, INC. dba KINDRED HOSPITAL ­ SAN DIEGO UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 DEFENDANT THC-ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S NOTICE OF MOTION FOR DISMISSAL OF PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(b)
07 CV2432-H(LSP)

) ) ) ) ) ) ) ) ) ) ) UNITED STATES OFFICE OF PERSONNEL ) ) MANAGEMENT; THC- ORANGE ) COUNTY, INC., dba KINDRED HOSPITAL ) SAN DIEGO ) ) ) Defendants. ) ) ) ) ) ARNOLD SCHIMSKY, as Trustee of THE ANN P. SHIMSKY TRUST and representative of ANN P. SHIMSKY, deceased Plaintiffs, vs.

Case No.: 07 CV2432-H(LSP) THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER CONTINUING THE HEARING ON DEFENDANT'S MOTION TO DISMISS AND ALLOWING PLAINTIFF TO FILE OPPOSITION IN DUE COURSE; OR IN THE ALTERNATIVE FOR AN ORDER ALLOWING PLAINTIFF TO FILE A LATE OPPOSITION; OR FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT COURTROOM: JUDGE: 13 Hon. Marilyn L. Huff

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendant THC-ORANGE COUNTY, INC., dba KINDRED HOSPITAL ­ SAN DIEGO, hereinafter "Defendant") opposes Plaintiff's Ex Parte Application for an order continuing the hearing on Defendant's motion to dismiss and

Case 3:07-cv-02432-H-LSP

Document 18

Filed 08/26/2008

Page 2 of 2

1 2 3 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

allowing plaintiff to file opposition in due course; or in the alternative for an order allowing plaintiff to file a late opposition or for leave to file a second amended complaint. This

opposition is based on the grounds that (1) Plaintiff has failed to Comply with Rule 6(b)(1) and has failed to demonstrate good cause for this Court to extend the time for him to file his opposition to defendant's motions; (2) Plaintiff has failed to demonstrate excusable neglect for the failure to timely file opposition to defendant's motions to dismiss; (3) Plaintiff's Application for relief is based on an incomplete representation of facts to this court; (4) Plaintiff failed to give Defendant proper notice of his application; and that (5) Defendant will be prejudiced should Plaintiff's application be granted. This motion is based upon this Notice, the Declaration of Karen A. Bocker, all documents and evidence on file herein, and upon such other oral and documentary evidence as may be presented at the hearing of this matter. Date: August 26, 2008 GIOVANNIELLO & MICHELS, LLP

By:

__s/Alexander F. Giovanniello ____________ Alexander F. Giovanniello, Esq. Karen A. Bocker, Esq. Attorneys for DEFENDANT, THC ORANGE COUNTY, INC., dba KINDRED HOSPITAL ­ SAN DIEGO

2 DEFENDANT THC-ORANGE COUNTY, INC., dba KINDRED HOSPITAL SAN DIEGO'S NOTICE OF MOTION FOR DISMISSAL OF PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO RULE 12(b)
07 CV2432-H(LSP)