Free Motion for Extension of Time to File - District Court of California - California

Case 3:07-cv-06169-BZ

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Filed 12/28/2007

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Brendan P. Cullen (SBN 194057) [email protected] Amie D. Rooney (SBN 215324) [email protected] SULLIVAN & CROMWELL LLP 1870 Embarcadero Road Palo Alto, California 94303 Telephone: (650) 461-5600 Facsimile: (650) 461-5700 Attorneys for Defendant ABN AMRO Bank, N.A.

UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 E&M TRUST, 11 Plaintiff, 12 13 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28
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v. ABN AMRO BANK, N.A., PB TRADING S.A., JAIME S. DREYFUS ZAMOKEVICH, J. RICHTER, RUDY BECKMAN, GRIP VERKIN,

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Case No. C07-06169 DEFENDANT ABN AMRO BANK, N.A.'S NOTICE OF MOTION AND MOTION TO ENLARGE TIME TO RESPOND TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Assigned to: Hon. Bernard Zimmerman Date Action Filed: December 5, 2007 Trial Date: Not yet set Hearing: January 16, 2008 Time: 10:00 a.m.

MOTION TO ENLARGE TIME TO RESPOND TO COMPLAINT CASE NO. C07-06169

Case 3:07-cv-06169-BZ

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NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE THAT on January 16, 2008, at 10:00 a.m., or as soon thereafter as counsel may be heard, in the United States District Court for the Northern District of California, located at 450 Golden Gate Avenue, San Francisco, California, 94102, Courtroom G, the Honorable Bernard Zimmerman presiding, Defendant ABN AMRO Bank, N.A ("ABN AMRO"), through its counsel, will and hereby does move to extend time to respond to the complaint pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and Local Rule 6-3. ABN AMRO requests a 45 day extension of time to respond. ABN AMRO's motion is made on the ground that the claims in the complaint require investigation before a response can be made and on the additional ground that the Sullivan & Cromwell partner responsible for ABN AMRO's representation will be out of the country and unable to supervise

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adequately the preparation of a response. ABN AMRO's motion will be based on this Notice and Motion, the concurrently filed Memorandum of Points and Authorities and Declaration of Amie D. Rooney, and such additional material as may be submitted to or considered by the Court at or before the time of hearing.

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MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND This case, which purports to involve the issuance of a fraudulent "Bank Guarantee" by the Defendants for $500,000,000.00, was filed on December 5, 2007. ABN AMRO Bank, N.V. was served by mail to its New York offices on or about December 10, 2007, making its response to the Complaint due on or about December 31, 2007. (See Declaration of Amie D. Rooney (hereinafter, "Rooney Decl.") ¶ 2, filed herewith.) On December 21, 2007, Amie D. Rooney, counsel for Defendant ABN AMRO, attempted to contact E&M Trust by phone using the number listed on the Complaint. (Rooney Decl. ¶ 3.) Ms. Rooney also sent a follow-up letter by fax and U.S. Mail requesting that Plaintiff agree to an extension of Defendants' time to respond to the Complaint. (Id.; Exhibit A.) On December 26, 2007, after receiving no response to the initial inquiry, Ms. Rooney again attempted to

13 14 15 16 17 18 19 20 of New York, U.S. v. Boghosian, et al., Case No. 05-cr-00351, which names William H. Spencer as a 21 22 23 24 25 26 27 28
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contact a representative for E&M Trust by phone and by fax. (Id. at ¶ 5-6; Exhibit B.) Again, there was no response. (Id. at ¶ 6.) As stated in the Complaint, the Plaintiff's representative and the complaint's signatory, William Spencer was convicted by a jury in Federal Court of "attempting to utilize [the Bank Guarantee at issue] to execute a business transaction with the United States Government for E&M Trust." Complaint, ¶ 14. A review of the docket from the United States District Court for the Southern District

Defendant indicates that Mr. Spencer was convicted on October 20, 2005 of Conspiracy to Defraud the United States and he was sentenced to 51 months imprisonment by the Hon. Loretta A. Preska on May 22, 2006. (See Exhibit C, pp. 10-11, 13.) Mr. Spencer was given a surrender date of August 15, 2006 and a request to extend that date was denied by Judge Preska on August 14, 2006. (Id. at p. 16.) On information and belief, Mr. Spencer is currently incarcerated and this fact may have contributed to his

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failure to respond to the messages or letters from Ms. Rooney seeking to extend Defendants' time to respond to the Complaint. ARGUMENT Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and Local Rule 6-3, upon a motion and upon a description of the reasons for the request and a showing of a substantial harm or prejudice to the moving party, this Court is authorized to grant an enlargement of time for Defendants to respond to the initial complaint filed in an action. See Local Rule 6-3(a). A 45-day extension of Defendants' time to respond to the Complaint in this action is appropriate because Defendants have valid defenses, and seek an extension of time to respond to the Complaint in order to fully investigate, document and present those defenses, including any information about Mr. Spencer's criminal conviction and the alleged forged document at the heart of both this case

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and the criminal proceeding. Furthermore, ABN AMRO's lead counsel will be traveling outside the United States and will be unavailable beginning January 2, 2008 for at least three weeks. (Rooney Decl. ¶ 9.) ABN AMRO, through its counsel, has made multiple attempts to contact Plaintiff in order to secure its stipulation to the requested extension ­ attempts which have gone unanswered. Plaintiff purports to seek damages in excess of $500,000,000.00 for a claim that he filed and served immediately before the Christmas and New Years holidays ­ a time during which many businesses (including ABN

it difficult if not impossible to adequately investigate or respond to the claims in the initial time-period allotted. (Id.) The requested extension will not prejudice any party to this action. The Complaint refers to events which occurred in late 2004 and does not purport to implicate any on-going conduct of the Defendants. Plaintiff did not file its complaint until December 5, 2007 ­ three years after the alleged issuance of the document at issue and over two years after the criminal conviction of Mr. Spencer, the 3
MOTION TO ENLARGE TIME TO RESPOND TO COMPLAINT CASE NO. C07-06169

Case 3:07-cv-06169-BZ

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plaintiff's representative, for his attempted use of the referenced document. Granting ABN AMRO an additional 45 days to respond to the allegations in the Complaint will not prejudice the Plaintiff. CONCLUSION ABN AMRO respectfully requests that this Court grant a 45 day extension of time to respond to the Complaint.

Date: December 28, 2007

/s/ Brendan P. Cullen Brendan P. Cullen (SBN 194057) Amie D. Rooney (SBN 215324) SULLIVAN & CROMWELL LLP 1870 Embarcadero Road Palo Alto, California 94303 Telephone: (650) 461-5600 Facsimile: (650) 461-5700 Attorneys for ABN AMRO Bank, N.A.

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MOTION TO ENLARGE TIME TO RESPOND TO COMPLAINT CASE NO. C07-06169