Free Motion to Dismiss - District Court of California - California

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

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Filed 07/31/2008

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KAREN P. HEWITT United States Attorney CINDY M. CIPRIANI Assistant United States Attorney California Bar No. 144402 U.S. Attorney's Office Southern District of California 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7390 Facsimile: (619) 557-5004 Email: [email protected] Attorneys for Defendant

8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ) ) ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OFFICE OF ) PERSONNEL MANAGEMENT; ) THC-ORANGE COUNTY, INC., dba ) KINDRED HOSPITAL SAN DIEGO ) ) Defendant. ) ____________________________________) TO: ARNOLD SCHIMSKY, as Trustee of ANN P. SCHIMSKY TRUST and representative of ANN P. SCHIMSKY, deceased, Case No.: 07cv2432 H (LSP) NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT UNITED STATES OFFICE OF PERSONNEL MANAGEMENT

DATE: TIME: CTRM: JUDGE:

September 2, 2008 10:30 a.m. 13 Hon. Marilyn Huff

PLAINTIFF AND HIS ATTORNEYS, EUGENE YALE & DALE BAUMGARTEN:

PLEASE TAKE NOTICE that on September 2, 2008, or as soon thereafter as counsel may be heard, in the Courtroom of the Honorable Marilyn Huff, the United States Office of Personnel Management ("OPM"), through its attorneys of record, Karen P. Hewitt, United States Attorney, and Cindy M. Cipriani, Assistant U.S. Attorney, will bring on its motion to dismiss the First Amended Complaint. /// ///

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

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This motion is based on the grounds that the Court lacks jurisdiction over the First Amended Complaint and it fails to state a viable claim for relief against the OPM. The motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the First Amended Complaint, and the files and records of this case. Dated: July 31, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Cindy M. Cipriani

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OPM's Notice of Motion & MTD & Service cert. 07CV2432

CINDY M. CIPRIANI Assistant U.S. Attorney Attorneys for Defendant United States Office of Personnel Management Email: [email protected]

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

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 10 11 12 13 14 15 I am not a party to the above-entitled action. I have caused service of: 16 1) 17 18 19 20 21 22 23 24 25 26 27 Eugene P. Yale David W. Baumgarten YALE & BAUMGARTEN, LLP 5030 Camino de la Siesta, Suite 308 San Diego, CA 92108 Attorney for Plaintiff [email protected] Alexander F. Giovanniello, Esq. [email protected] GIOVANNIELLO & MICHELS, LLP 1470 South Valley Vista Drive, Suite 200 Diamond Bar, CA 91765 Attorney for Defendant, THC Orange County dba Kindred Hospital - San Diego 2) NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT UNITED STATES OFFICE OF PERSONNEL MANAGEMENT (dated 07/31/08) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT UNITED STATES OFFICE OF PERSONNEL MANAGEMENT'S MOTION TO DISMISS (dated 07/31/08) IT IS HEREBY CERTIFIED THAT: I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. ) ) ) ) ) Plaintiff, ) ) v. ) ) UNITED STATES OFFICE OF ) PERSONNEL MANAGEMENT; ) THC-ORANGE COUNTY, INC., dba ) KINDRED HOSPITAL SAN DIEGO ) ) Defendant. ) ____________________________________) ARNOLD SCHIMSKY, as Trustee of ANN P. SCHIMSKY TRUST and representative of ANN P. SCHIMSKY, deceased, Case No.: 07cv2432 H (LSP)

CERTIFICATE OF SERVICE

JUDGE:

Hon. Marilyn Huff

on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them.

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

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1 2 3 4 5 I declare under penalty of perjury that the foregoing is true and correct. 6 Executed on July 31, 2008. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 s/ Cindy M. Cipriani CINDY M. CIPRIANI I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: N/A the last known address, at which place there is delivery service of mail from the United States Postal Service.