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

Case 3:07-cv-03758-SC

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Filed 02/25/2008

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GORDON P. ERSPAMER (CA SBN 83364) [email protected] ARTURO J. GONZALEZ (CA SBN 121490) [email protected] HEATHER A. MOSER (CA SBN 212686) [email protected] STACEY M. SPRENKEL (CA SBN 241689) [email protected] PAUL J. TAIRA (CA SBN 244427) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 [see next page for additional counsel for Plaintiffs] Attorneys for Plaintiffs VETERANS FOR COMMON SENSE and VETERANS UNITED FOR TRUTH, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION VETERANS FOR COMMON SENSE and VETERANS UNITED FOR TRUTH, INC., Plaintiffs, v. JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, et al., Defendants. ADMINISTRATIVE MOTION FOR ADEQUATE TIME TO RESPOND TO NEW LEGAL ARGUMENT RAISED ON REPLY Place: Courtroom 1, 17th Floor Judge: Hon. Samuel Conti Complaint Filed July 23, 2007 Case No. C-07-3758-SC

CLASS ACTION

ADMINISTRATIVE MOTION FOR ADEQUATE TIME TO RESPOND TO NEW LEGAL ARGUMENT RAISED ON REPLY CASE NO. C-07-3758-SC

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ADDITIONAL COUNSEL FOR PLAINTIFFS: SIDNEY M. WOLINSKY (CA SBN 33716) [email protected] JENNIFER WEISER BEZOZA (CA SBN 247548) [email protected] KATRINA KASEY CORBIT (CA SBN 237931) [email protected] DISABILITY RIGHTS ADVOCATES 2001 Center Street, Third Floor Berkeley, California 94704-1204 Telephone: 510.665.8644 Facsimile: 510.665.8511 BILL D. JANICKI (CA SBN 215960) [email protected] MORRISON & FOERSTER LLP 400 Capitol Mall, Suite 2600 Sacramento, California 95814 Telephone: 916.448.3200 Facsimile: 916.448.3222

ADMINISTRATIVE MOTION FOR ADEQUATE TIME TO RESPOND TO NEW LEGAL ARGUMENT RAISED ON REPLY CASE NO. C-07-3758-SC

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Pursuant to Northern District Civil Local Rule 7-11, Plaintiffs hereby move the Court for an order for adequate time to respond to a new legal argument raised by Defendants in their Reply Memorandum in Support of Motion to Dismiss Claims Against Defendants William P. Greene, Jr. and Michael B. Mukasey. For the second time, Defendants raise a new legal argument on reply. Defendants' first motion to dismiss raised a sovereign immunity issue with respect to Defendant Greene in the last paragraph of their reply brief in support of their motion to dismiss. Motion to Dismiss Order, at 41. Because the issue was raised on reply, the Court did not rule on the issues but instead allowed Defendants to refile their motion to dismiss Defendant Greene. Id. Defendants based their refiled motion on the sovereign immunity argument raised in the previous reply brief. Plaintiffs filed a timely response to that sovereign immunity issue. In their reply on the second motion to dismiss,1 Defendants once again raise a new legal argument in the last section of their reply that Plaintiffs were not afforded the opportunity to address in their briefing. Defendants' new legal argument in their reply, judicial immunity, was neither raised in the initial reply argument to dismiss Greene or the second opening brief. Most importantly, the relevant judicial immunity cases cited in the reply were not cited in either previous brief. Judicial immunity is a defense wholly distinct from sovereign immunity. The Court cannot allow Defendants to file seriatim motions until Defendants are satisfied that they have exhausted legal research avenues. That holds particularly true when the new legal arguments are raised on reply, depriving Plaintiffs of the opportunity to address them before the Court. It is axiomatic that "reply papers may only address issues raised in the moving papers. It is improper to introduce new facts or a different legal argument in the reply brief." Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, 26.50[1] (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 894-95 (1990) and United States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117,

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Defendants submitted their reply brief past the court-mandated deadline. The February 29, 2008 hearing for the Motion to Dismiss Greene was rescheduled for March 3, 2008. However, Defendants were aware of the Court clerk's view that the briefing schedules remained unchanged unless expressly noted in the order, which they were not. As a result, Defendants' reply brief was due Friday, February 15, 2008; it was not filed until four days later, on Tuesday, February 19.
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1127 (C.D. Cal. 2000)); N.D. Cal. Civ. R. 7-4(a)(3) (requiring moving papers to contain a "statement of the issues to be decided"). Plaintiffs respectfully request that the Court refuse to consider the newly raised judicial immunity argument in ruling on Defendants' motion to dismiss. Even if the Court is inclined to address the new issue improperly raised on reply, it is a potentially complicated area of law. Plaintiffs would be prejudiced without an opportunity to fully research and brief that issue for the Court. Accordingly, Plaintiffs respectfully request that the hearing on the Motion to Dismiss Greene be rescheduled for April 11, 2008, with Plaintiffs' brief on that issue due on March 21, and no opportunity for reply. Plaintiffs attempted to reach a stipulation with defense counsel on the foregoing terms, but were unsuccessful. Declaration of Heather A. Moser, ¶ 2, Exs. A-B.

Dated: February 25, 2008

GORDON P. ERSPAMER ARTURO J. GONZALEZ HEATHER A. MOSER BILL D. JANICKI STACEY M. SPRENKEL PAUL J. TAIRA MORRISON & FOERSTER LLP

By: /s/ Heather A. Moser Heather A. Moser ([email protected]) Attorneys for Plaintiffs

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