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

Case 4:07-cv-05078-CW

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JOSEPH P. RUSSONIELLO (CABN 44332) United States Attorney JOANN M. SWANSON (CABN 88143) Chief, Civil Division NEILL T. TSENG (CABN 220348) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7155 FAX: (415) 436-6748 [email protected] Attorneys for Federal Defendants JOHN ASHCROFT and ALBERTO GONZALES

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 07-5078 CW FEDERAL DEFENDANTS JOHN ASHCROFT AND ALBERTO GONZALES'S NOTICE OF MOTION AND MOTION FOR ADMINISTRATIVE RELIEF RESETTING DATE OF INITIAL CASE MANAGEMENT CONFERENCE

JOHN ASHCROFT, ALBERTO GONZALES, CHARLES PLUMBER, COUNTY OF ALAMEDA, GEO CORPORATION, CORNELL CORRECTIONS, MATHEW LAING, BERNARD ELLIS, FRAN WATKINS, Does 1-100,

PLEASE TAKE NOTICE that Federal Defendants John Ashcroft and Alberto Gonzales hereby move this Court under Local Rule 7-11 before the Honorable Claudia Wilken, United States District Judge, for an order resetting the date of the initial case management conference from July 22, 2008 to August 26, 2008. The motion is based on this notice, the memorandum of points and authorities, all the matters of record filed with the Court, and such other evidence as may be submitted.

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Case 4:07-cv-05078-CW

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STATEMENT OF RELIEF Federal Defendants John Ashcroft and Alberto Gonzales (collectively, the "Federal Defendants") move for an order resetting the date of the initial case management conference (the "initial CMC") from July 22, 2008 to August 26, 2008. ISSUES TO BE DETERMINED Whether the date of the initial CMC should be reset from July 22, 2008 to August

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff John Milwitt ("Plaintiff") has asserted claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics Agents, 403 U.S. 388 (1971), against the defendants in this case, which include the Federal Defendants, defendants from the County of Alameda, as well as other defendants who apparently have not been served. (Docket No. 19.) On April 15, 2008, the court set the initial CMC in this case for July 22, 2008 at 2:00 p.m. (Docket No. 7.) Defendants Charles Plumber and the County of Alameda (the "County Defendants") filed a motion to dismiss, or alternatively, motion for more definite statement on May 12, 2008. (Docket No. 14.) The court notified the parties that it would take that motion under submission on the papers, and ordered that Plaintiff's opposition brief would be due July 3 and that the County Defendants' reply brief would be due July 10. (Docket No. 19.) On June 23, 2008, the Federal Defendants filed a motion to dismiss or, alternatively, motion for a more definite statement, which has been noticed for hearing on August 7, 2008. (Docket No. 20.) The undersigned counsel for the Federal Defendants will be unable to attend the initial CMC on July 22, 2008, because he will be in Columbia, South Carolina from July 14-24 attending a DOJ trial advocacy course. Decl. of Neill T. Tseng at ¶ 2. In addition, the undersigned has another initial case management conference scheduled for July 22, 2008 at 2:00 p.m. in San Jose before Magistrate Judge Trumbull. Id. at ¶ 6. Therefore, the Federal

FED. DEFS.' M OT. FOR ADM IN. RELIEF RESETTING DATE OF INITIAL CM C 07-5078 CW

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Defendants move the court to reset the date of the initial CMC. The Federal Defendants ask that the initial CMC be reset to a date after August 7, 2008, which is the date scheduled for hearing on the Federal Defendants' motion to dismiss, because the Federal Defendants believe the initial CMC would be more productive if it was known whether they (or any other defendants) had been dismissed from the case, or whether Plaintiff would be required to file a more definite statement. The earliest Tuesday after August 7 that the undersigned is available is August 26, because the undersigned has a deposition scheduled for August 12 and will be out of town on vacation on August 19. Id. at ¶ 3. Therefore, the Federal Defendants request that the initial CMC be rescheduled for August 26, 2008. The County Defendants have informed the Federal Defendants that they have no objection to the requested date change. Id. at ¶ 4. The undersigned attempted to contact Plaintiff at the phone number listed on the complaint to ask whether he would stipulate to the requested date change, but received a message stating that the phone number has been disconnected or is no longer in service. Id. at ¶ 5. CONCLUSION For the foregoing reasons, the Court should reset the date of the initial CMC from July 22, 2008 to August 26, 2008. Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney DATED: July 2, 2008 /s/ NEILL T. TSENG Assistant United States Attorney

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