Free Motion to Dismiss - District Court of California - California

Case 4:07-cv-03885-CW

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1 JOHN A. RUSSO, City Attorney - SB#129729 RANDOLPH W. HALL, Assistant City Attorney - SB#080142 2 RACHEL WAGNER, Supervising Trial Attorney - SB# 127246 One Frank H. Ogawa Plaza, 6th Floor 3 Oakland, California 94612 Telephone: (510) 238-4921 Fax: (510) 238-6500 Email: [email protected] 4 X03056/415527 5 Attorneys for Defendant 6 CITY OF OAKLAND 7 8 9 10 11 12 13 v. JOHN PHILLIPS Petitioner, Case No. C07-03885 CW (AMENDED) NOTICE OF DEFENDANT CITY OF OAKLAND'S MOTION AND MOTION TO DISMISS COMPLAINT Date: November 8, 2007 Time: 2:00 p.m. Dept: 2, Fourth Floor U.S.D.J.: The Hon. Claudia Wilken Complaint Filed: July 30, 2007 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CITY OF OAKLAND, CALIFORNIA, 14 KAREN P. TANDY, Administrator, U.S. Drug Enforcement Administration, 15 SCOTT N. SCHOOLS, U.S. Attorney for the Northern District of California, 16 ARNOLD SCHWARZENEGGER, Governor of the State of California, 17 Respondents. 18 19 TO PLAINTIFF IN PRO PER: 20 21 22

PLEASE TAKE NOTICE that on Thursday, November 8, 2007, at 2:00 p.m. or as soon as the matter may be heard in Courtroom 2, Fourth Floor, 1301 Clay Street,

23 Oakland, California, 94612-5212, Defendant CITY OF OAKLAND will move and hereby 24 does move the Court for an order pursuant to Federal Rule of Civil Procedure 12(b)(6), 25 dismissing certain causes of action against the City of Oakland for failure to state a claim 26 -1DEFENDANT CITY OF OAKLAND'S AMENDED NOTICE OF MOTION AND MOTION TO DISMISS C07-03885

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1 as a matter of law. 2 3 4 5 6 7 8 9 10 11 12 13 as a matter of federal law. This motion is based on the accompanying Memorandum of Points and Authorities 3. 2. granted. More specifically, the motion is based on the following grounds: 1. Plaintiff's First Cause of Action entitled "Equal Protection of the Law" Fails As A Matter of Federal and State Law. Plaintiff's Second Cause of Action entitled " Right To Earn A Living" Fails As A Matter of Federal and State Law. Plaintiff's Third Cause of Action for Violation of the Supremacy Clause fails The motion to dismiss is made on the grounds that as to each of the causes of action in plaintiff's complaint, plaintiff has failed to state a claim for which relief can be

14 and the files of the Court in this case. 15 Dated: October 3, 2007 16 17 18 19 20 21 22 23 24 25 26 -2DEFENDANT CITY OF OAKLAND'S AMENDED NOTICE OF MOTION AND MOTION TO DISMISS C07-03885

JOHN A. RUSSO, City Attorney RANDOLPH W. HALL, Assistant City Attorney RACHEL WAGNER, Supervising Trial Attorney By: _____________s/s_________________________ Attorneys for Defendant CITY OF OAKLAND

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PROOF OF SERVICE Phillips vs. City of Oakland, et al. U.S.D.C. Case No. C07-03885

I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is City Hall, One City Hall Plaza, 6th 4 Floor, Oakland, California 94612. On the date set forth below, I served the within 5 documents: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (AMENDED) NOTICE OF DEFENDANT CITY OF OAKLAND'S MOTION AND MOTION TO DISMISS COMPLAINT

¨ x x ¨ ¨

by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 p.m. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Oakland, California addressed as set forth. by causing personal delivery by messenger of the document(s) listed above to the person(s) at the address(es) set forth below. by causing such envelope to be sent by Federal Express/Express Mail VIA ELECTRONIC MAIL: I attached a true and correct copy thereof in PDF format to an electronic mail message transmitted to the electronic mail address indicated below. John Phillips ­ by personal delivery and U.S. Mail 2337 Ransom Avenue Oakland, CA 94601-3827 Jill Bowers ­ by U.S. Mail Deputy Attorney General 1300 I Street, Suite 125 Sacramento, CA 94244-2550

I am readily familiar with the City of Oakland's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. 21 Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. 22 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct in accordance with 28 U.S.C. § 1746. 23 24 25 26 -3DEFENDANT CITY OF OAKLAND'S AMENDED NOTICE OF MOTION AND MOTION TO DISMISS C07-03885

Executed on October 3, 2007, at Oakland, California. s/s

Deborah Walther

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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 -4DEFENDANT CITY OF OAKLAND'S AMENDED NOTICE OF MOTION AND MOTION TO DISMISS C07-03885