Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02269-W-RBB

Document 3

Filed 02/11/2008

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KAREN P. HEWITT United States Attorney CAROL M. LEE Assistant U.S. Attorney California Bar No. 219246 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 557-6235 Facsimile: (619) 557-5004 Email: [email protected] Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) v. ) ) MICHAEL CHERTOFF, SECRETARY, ) DEPARTMENT OF HOMELAND SECURITY, ) ) Defendant. ) ) ) _________________________________________ ) JOHN J. RODRIGUEZ, JR., Case No. 07cv2269-W (RBB) NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT; DATE: TIME: CTRM: JUDGE: March 24, 2008 10:00 a.m. 7 Thomas J. Whelan

NO ORAL ARGUMENT PURSUANT TO CIVIL LOCAL RULE 7.1(d)(1)

NOTICE OF MOTION AND MOTION TO DISMISS 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE that on March 24, 2008, at 10:00 a.m., or as soon thereafter as counsel may be heard, in the Courtroom of the Honorable Thomas J. Whelan, Defendant, United States of America, through its attorneys of record, Karen P. Hewitt, United States Attorney, and Carol M. Lee, Assistant U.S. Attorney, will bring this motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). /// /// TO: PLAINTIFF, JOHN J. RODRIGUEZ, JR., AND HIS ATTORNEY, DOUGLAS E. GEYMAN:

Case 3:07-cv-02269-W-RBB

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Filed 02/11/2008

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Defendant's motion is based on all the grounds set forth in the Memorandum of Points and Authorities, including but not limited to the following: this Court lacks subject matter jurisdiction as to Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(1); and the Complaint fails to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, the Complaint fails to allege facts sufficient to support any cognizable claim for relief against the named Defendant, and to the extent Defendant has been named in his official capacity, this Court lacks subject matter jurisdiction. Accordingly, for the reasons more fully set forth in the attached Memorandum, Defendant urges the Court to dismiss Plaintiff's Complaint. This motion is based on this Notice, the accompanying Memorandum of Points and Authorities, and the files and records of this case. Dated: February 11, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Carol M. Lee

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Attorneys for Defendant Michael Chertoff, Secretary, Department of Homeland Security CAROL M. LEE Assistant U.S. Attorney

07cv2269