Free Response in Support - District Court of California - California

Case 4:08-cv-03447-CW

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Filed 09/03/2008

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1 PAUL V. SIMPSON, BAR NO. 83878 [email protected] 2 TIMOTHY P. O'DONNELL, BAR NO. 185492 [email protected] 3 SIMPSON, GARRITY & INNES
Professional Corporation

4 601 Gateway Boulevard, Suite 950 South San Francisco, CA 94080 5 Telephone: (650) 615-4860 Fax: (650) 615-4861 6 Attorneys for Defendant 7 IMR Contractor Corporation 8 9 10 11 ) GREGORY HALL, FAUSTO AGUILAR, ) 12 GONZALO AGUILAR, CHARLES CHILTON, FELIX CORTES, OMAR FRANCO, DOUGLAS ) ) 13 GIVENS, ROBERT IVY, QUINCY MOUTON, ) LUIS OSUNA, RICHARD RANKIN, HECTOR 14 RODRIGUEZ, MARTIN SANDOVAL, HENRY ) ) TAYLOR, LLOYD THIBEAUX, MICHAEL ) 15 BROWN, ASTRIAN CAEL, ARNULFO ) CARRANZA-RIVAS, APOLINAR CORNEJO, 16 ROY EDWARDS, VICTOR HAMPTON, RANDY ) ) KEYS, ANDRE LARRIMORE, TERRY ) 17 MACKEY, DOUGLAS TURNER, JEFF WEST, ) ROBERT WHITE, MARQUEZ BOYD, ) 18 ) Plaintiffs, ) 19 ) v. ) 20 ) APARTMENT INVESTMENT AND 21 MANAGEMENT COMPANY, AIMCO CAPITAL, ) INC., FORTNEY & WEYGANDT, INC., IMR ) ) 22 CONTRACTOR CORPORATION, BAY BUILDING SERVICES, BAY AREA ) 23 CONSTRUCTION FRAMERS, INC. and DOES 1- ) 50, ) ) 24 Defendants. ) ) 25 26 27 28
{CLIENT FILES\30625\7\00094979.DOC} -1DEFENDANT IMR CONTRACTOR CORP.'S REPLY BRIEF RE: MOTION FOR A MORE DEFINITE STATEMENT OR IN THE ALTERNATIVE MOTION TO DISMISS / STRIKE PORTIONS OF PLAINTIFFS' SECOND AMENDED COMPLAINT CASE NO. 08-CV-3447 CW

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No. 08-CV-3447 CW DEFENDANT IMR CONTRACTOR CORPORATION'S REPLY BRIEF IN SUPPORT OF MOTION FOR A MORE DEFINITE STATEMENT OR IN THE ALTERNATIVE MOTION TO DISMISS AND/OR MOTION TO STRIKE PORTIONS OF PLAINTIFFS' SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [FRCP 12(e), 12(b)(6), 12(f)] DATE: TIME: JUDGE: ROOM: September 18, 2008 2:00 p.m. Hon. Claudia Wilkin Courtroom 2, 4th Floor

Case 4:08-cv-03447-CW

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1 I. 2 3 4

ARGUMENT A. In Light Of Plaintiffs' Concessions, The Court Should Grant The Motion For A More Definite Statement

Defendant IMR Contractor Corporation ("IMR" or "Defendant") filed the present motion

5 seeking a more definite statement with respect to Plaintiffs' second amended complaint. 6 Defendant sought a more definite statement for each cause of action with respect to the identity of 7 the plaintiff or plaintiffs asserting the cause of action and the identity of the defendant against 8 whom the cause of action is asserted. Additionally, Defendant sought a more definite statement 9 regarding the nature of the eighth through thirteenth causes of action. 10 Plaintiffs' do not oppose the request for a more definite statement with respect to the

11 identities of the Plaintiffs making the claim and the Defendants against whom the claims are made. 12 Based on Plaintiffs' concession, the Court should order Plaintiffs to amend their complaint to 13 specify the names of the Plaintiff(s) asserting each cause of action and the names of the 14 Defendant(s) against whom each cause of action is asserted. 15 With respect to the tenth through thirteenth causes of action, Plaintiffs' opposition

16 characterizes these as Tameny claims instead of direct statutory or constitutional claims. 17 Defendant does not dispute that California law recognizes tortious termination claims. However, 18 as currently pled, it is not clear that these are Tameny claims. Therefore, Plaintiffs should be 19 required to amend these causes of action to make clear they are Tameny claims. 20 B. 21 22 Alternatively, Defendant's motion seeks the dismissal and/or striking of the eighth through 23 thirteenth causes of action. Given Plaintiffs' explanation with respect to the tenth through 24 thirteenth causes of action, Defendant recognizes that leave to amend, and not dismissal, is 25 appropriate for these claims. As for the eighth and ninth causes of action, Plaintiffs concede that 26 these claims should be dismissed and/or stricken. Accordingly, Defendant's motion to dismiss 27 28
{CLIENT FILES\30625\7\00094979.DOC} -2DEFENDANT IMR CONTRACTOR CORP.'S REPLY BRIEF RE: MOTION FOR A MORE DEFINITE STATEMENT OR IN THE ALTERNATIVE MOTION TO DISMISS / STRIKE PORTIONS OF PLAINTIFFS' SECOND AMENDED COMPLAINT CASE NO. 08-CV-3447 CW

Plaintiffs Concede That The Eighth And Ninth Causes Of Action Should Be Dismissed And/Or Stricken

Case 4:08-cv-03447-CW

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1 and/or strike with respect to the eighth and ninth causes of action should be granted without leave 2 to amend. 3 II. 4 CONCLUSION For the foregoing reasons, Defendant IMR Contractor Corporation requests that the Court

5 order Plaintiffs to provide a more definite statement and specify which Plaintiffs assert each cause 6 of action and against which defendant the cause of action is breach. Further, a more definite 7 statement is requested with respect to the eight through thirteenth causes of action to specify that 8 these are Tameny claims and not direct statutory and/or constitutional claims. Finally, Defendant 9 requests that the Court dismiss and/or strike the eighth and ninth causes of action. 10 11 Date: September 3, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
{CLIENT FILES\30625\7\00094979.DOC} -3DEFENDANT IMR CONTRACTOR CORP.'S REPLY BRIEF RE: MOTION FOR A MORE DEFINITE STATEMENT OR IN THE ALTERNATIVE MOTION TO DISMISS / STRIKE PORTIONS OF PLAINTIFFS' SECOND AMENDED COMPLAINT CASE NO. 08-CV-3447 CW

Respectfully submitted, SIMPSON, GARRITY & INNES
Professional Corporation

By: /s/ Timothy P. O'Donnell PAUL V. SIMPSON TIMOTHY P. O'DONNELL Attorneys for Defendant IMR CONTRACTOR CORPORATION