Free Motion for Miscellaneous Relief - District Court of California - California

Case 4:07-cv-04894-SBA

Document 84

Filed 09/12/2008

Page 1 of 4

1 2 3 4 5 6 7

JOSEPH P. RUSSONIELLO (SBN 44332) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division ABRAHAM A. SIMMONS (SBN 146400) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: (415) 436-7264 Facsimile: (415) 436-6748 Email: [email protected] Attorneys for Federal Defendants

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 12 13 Plaintiffs, 14 v. 15 16 17 Defendants. 18 19 Pursuant to Civil Local Rule 7-11, Federal Defendants Seth McMullen and John Silva 20 jointly request that this court permit filing of the accompanying Federal Defendants' Response to 21 Plaintiffs' Contingent Rule 56(f) Requests for Relief. 22 On June 25, 2008, the federal defendants filed motions for summary judgment or for 23 summary adjudication of issues. [Docket Nos. 47, 56.] On August 5, 2008, plaintiffs filed 24 oppositions to the motions. [Docket Nos. 74, 75.] Along with their substantive opposition to 25 defendants' motions, plaintiffs filed a contingent request for relief pursuant to Federal Rule of 26 Civil Procedure 56(f). Specifically, plaintiffs requested that if, after submission of the motions, 27 this Court was disposed to grant the defendants' motions, that it then consider whether, instead, 28 plaintiffs should be permitted to engage in further discovery. [Docket No. 74 at 23-25; Docket SETH M. MCMULLEN, PAUL ACCORNERO and JOHN SILVA, ROBERT CARL PATRICK KEANE, individually; and CHIEKO STRANGE, individually, ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-4894 SBA FEDERAL DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO FILE A RESPONSE TO PLAINTIFFS' CONTINGENT RULE 56(f) REQUESTS FOR RELIEF; DECLARATION OF ABRAHAM A. SIMMONS; [PROPOSED] ORDER

Before:

Hon. Saundra B. Armstrong

Case 4:07-cv-04894-SBA

Document 84

Filed 09/12/2008

Page 2 of 4

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 27 28

No. 75 at 19-20.] On September 2, 2008, defendants filed a reply to plaintiffs' substantive oppositions but did not address their separate requests for relief pursuant to Rule 56(f). [Docket Nos. 82, 83.] Defendants have sought a stipulation from plaintiffs since September 3, 2008 to agree to the filing of additional papers to address plaintiffs' separate request. Declaration of Abraham A. Simmons (attached). Among the reasons defendant discussed with plaintiffs' attorneys as the reasons additional documents should be filed is the fact that the Court is not aware that plaintiffs now are in possession of the arrest warrant and that their request for relief was more properly brought in a separate motion anyway. Plaintiffs claimed that they would not agree to the filing of defendants' response first because the request was too late, then because the Rule 56(f) issues was not truly part of the issues raised in the defendants' motion. Plaintiffs then requested to see the papers and then claimed the request was part of the opposition and should have been filed as part of defendants' reply (along with a substantive response to the facts and arguments raised in the papers). Permitting filing of the response is appropriate and fair. Plaintiffs should have filed a separate motion permitting defendant the time allowed under the local rules to respond. Further, plaintiffs should have, but failed to inform the Court that a key factual basis for their request for relief now is inaccurate. Specifically, plaintiffs have argued that they need additional discovery in part because they seek to demonstrate that no warrant was issued for the arrest of plaintiff Keane. Nevertheless, after plaintiffs filed their oppositions, they received a copy of the arrest warrant. The response that defendants seek to file addresses this and other inaccuracies in plaintiffs' opposition papers. Respectfully submitted, JOSEPH R. RUSSONIELLO United States Attorney Dated: September 12, 2008 /s/ ABRAHAM A. SIMMONS Assistant United States Attorney

2

Case 4:07-cv-04894-SBA

Document 84

Filed 09/12/2008

Page 3 of 4

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 27 28 1.

DECLARATION OF ABRAHAM A. SIMMONS I, Abraham A. Simmons, declare as follows: I am an Assistant United States Attorney in the Northern District of California and I have

been assigned to represent the government in the above-captioned matter. If called to testify I would and could competently testify as to the facts in this declaration. 2. No stipulation could be reached to permit filing of the attached papers. I have requested

plaintiffs' attorneys since September 3, 2008, a stipulation to allow defendants to address additional arguments raised in their opposition papers that defendants did not address in their reply. At first, I corresponded with James Heffner and explained that defendants were unable to address certain arguments raised in plaintiffs' papers due to the illness of one of my siblings. Mr. Heffner responded that he was sorry he could not stipulate to the filing but that the request was too late because it was for additional time but made after the deadline for filing of the papers. I later requested a stipulation to allow defendants to file additional papers that would address only the Rule 56(f) relief and not the additional arguments defendants were unable to address in their reply. Mr. Heffner and I both acknowledged that Rule 56(f) was not addressed in defendant's motions and was new material that came up in the plaintiffs' oppositions. I wrote to Mr. Heffner and raised the argument that the document should be permitted specifically because no separate motion was filed and no responsive date existed. Plaintiffs requested a copy of the papers that would be filed and later responded that they would not agree to a stipulation. Plaintiffs responded substantively to a number of the facts and arguments in the papers and claimed that any response to plaintiffs' Rule 56(f) request should have been filed with the defendants' reply papers. I declare under penalty of perjury under the laws of the United States that the above is true and accurate. Executed this 12th day in September, 2008, in San Francisco, California.

_____________/s/________________________ Abraham A. Simmons

3

Case 4:07-cv-04894-SBA

Document 84

Filed 09/12/2008

Page 4 of 4

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 27 28 ________________________ DATED

[PROPOSED] ORDER The Defendants' Motion for Administrative Relief is granted. Federal Defendants' Response to Plaintiffs' Contingent Rule 56(f) Requests for Relief shall be filed.

________________________________ HON. SAUNDRA B. ARMSTRONG United States District Judge

4