Free Reply Memorandum - District Court of California - California

Case 5:07-cv-05022-PVT

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SCOTT N. SCHOOLS (SC 9990) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division MELISSA K. BROWN (CSBN 203307) Assistant United States Attorney [email protected] 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6962 FAX: (415) 436-6748 Attorneys for Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 JAGUAR ASSOCIATES GROUP, 12 Plaintiff, 13 v. 14 UNITED STATES POSTAL SERVICE, 15 Defendants. 16 17 I. INTRODUCTION 18 The defendant the United States Postal Service ("USPS") submits this supplemental brief 19 in support of its motion to dismiss based upon a newly discovered fact. Specifically, on 20 November 14, 2007 at approximately 9:20 a.m. counsel for the defendant spoke with Mr. 21 Richard France on the telephone and learned that Mr. France, who purports to represent the 22 Plaintiff Jaguar Associates Group in this action is not a licensed attorney. Pursuant to Local Rule 23 3-9(b) of the Local Rules for the U.S. District Court for the Northern District of California, a 24 corporation, unincorporated association or other such entity may appear only through a member 25 of the bar of this Court. Because Mr. France is not a licensed attorney, Jaguar Associates Group 26 is not properly before this Court and its Complaint should be dismissed. 27 28
DEFENDANT'S SUPPLEMENTAL REPLY ISO MOTION TO DISMISS C 07-5022 PVT

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No. C 07-5022 PVT DEFENDANT'S SUPPLEMENTAL REPLY BRIEF IN LIGHT OF NEWLY DISCOVERED FACTUAL INFORMATION Date: Time: Courtroom: November 20, 2007 10:00 a.m. 5

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II. STATEMENT OF FACTS The majority of facts have been set forth previously in Defendant's Memorandum of Points & Authorities submitted in support of its Motion to Dismiss ("MTD") and in Defendant's Reply Brief in support of its Motion to Dismiss ("Reply"). Accordingly, this Statement of Facts only addresses those facts relevant to the discovery of new information. On or about Tuesday, November 13, 2007, counsel for the defendant USPS contacted Mr. Richard France who purports to be the representative for Plaintiff Jaguar Associates Group to determine whether Mr. France was a licensed attorney. Mr. France was unavailable, so counsel left Mr. France a message. Declaration of Melissa K. Brown ("Brown Decl.") at ¶ 2. The following morning on Wednesday, November 14, 2007, Mr. France and counsel for the defendant spoke on the telephone. Brown Decl. at ¶ 3. During that telephone conversation, counsel for the defendant asked Mr. France if he was a licensed attorney, Mr. France replied that he was not a licensed attorney. Id. Counsel for the defendant then directed Mr. France to LR 39(b), which requires corporations and other entities to be represented by a licensed attorney in court proceedings. Counsel for the defendant then informed Mr. France that she would likely move to dismiss on this additional basis. Id. at ¶ 4. On Thursday, November 15, 2007, counsel for USPS contacted Mr. France to inquire as to whether Plaintiff Jaguar Associates Group would be represented by an attorney at the hearing on the motion to dismiss. Mr. France informed counsel for USPS that plaintiff would not be represented by an attorney. Id. at ¶ 5. Accordingly, the defendant submits this supplemental brief. III. RELIEF SOUGHT

Defendant USPS seeks an order precluding nonattorney Richard France from appearing on behalf of plaintiff Jaguar Associates Group and dismissing plaintiff's complaint with prejudice, as set forth in USPS's MTD and Reply brief. IV. ANALYSIS

A. A Corporation or Other Entity Must Be Represented By A Licensed Attorney to Properly Appear Before This Court. Pursuant to Local Rule 3-9(b) of the United States District Court Local Rules for the

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Northern District of California, a corporation or other entity must be represented by a licensed attorney. LR 3-9(b). Specifically, LR 3-9(b) states, "A corporation, unincorporated association, partnership or other such entity may appear only through a member of the bar of this Court." LR 3-9(b). The Ninth Circuit is in accord with this rule. See, e.g., In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994)(affirming grant of motion precluding nonattorney from representing corporation and stating, "Corporations and other unincorporated associations must appear in court through an attorney."); D-Beam Ltd. Partnership v. Roller Derby Skates, Inc., 366 F.3d 972, 974 (9th Cir. 2004). Jaguar Associates Group is not a natural person, but is a "car club" and as such falls within the definition of other entity, and therefore, must be represented by an attorney. In re America West Airlines, 40 F.3d at 1059; Brown Decl. at ¶ 3. Because Mr. France is not a licensed attorney, he should not be allowed to represent Jaguar Associates Group before this Court. IV. CONCLUSION For this reason and the reasons set forth in USPS's MTD and Reply, USPS's motion to dismiss the complaint with prejudice should be granted.

Dated: November 15, 2007

Respectfully submitted, SCOTT N. SCHOOLS United States Attorney /S/ MELISSA K. BROWN Assistant U.S. Attorney Attorneys for Defendant

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CERTIFICATE OF SERVICE The undersigned hereby certifies that she is an employee of the Office of the United States Attorney for the Northern District of California and is a person of such age and discretion to be competent to serve papers. The undersigned further certifies that she is causing a copy of the following: DEFENDANT'S SUPPLEMENTAL REPLY BRIEF IN LIGHT OF NEWLY DISCOVERED FACTUAL INFORMATION Jaguar Associates Group v. United States Postal Service C 06-05022 PVT to be served this date upon each of the persons indicated below at the address shown:

10 11 12 13 14 15 16 17 18 19 20 I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. Executed November 15, 2007 at San Francisco, California. 22 23 24 25 26 27 28
DEFENDANT'S SUPPLEMENTAL REPLY ISO MOTION TO DISMISS 4 C 07-5022 PVT

Richard H. France 22860 Old Santa Cruz Hwy Los Gatos, CA 95033 BY FIRST CLASS MAIL by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing U.S. mail in accordance with this office's practice. ______ BY PERSONAL SERVICE (BY MESSENGER): I caused such envelope to be delivered by hand to the person or offices of each addressee above. BY FACSIMILE (FAX): I caused each such document to be sent by facsimile to the person or offices of each addressee above. ______ / BY E-MAIL: I caused each such document to be sent by e-mail to the person or offices of each address above. BY FEDERAL EXPRESS

/s/ KATHY TERRY Legal Assistant