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

Case 3:07-cv-04755-JSW

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Filed 03/05/2008

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BIRNBERG & ASSOCIATES CORY A. BIRNBERG (SBN 105468) JOSEPH SALAMA, ESQ. (SBN 212225) BIRNBERG & ASSOCIATES 703 Market Street, Suite 600 San Francisco, CA 94103 Telephone: (415) 398-1040 Facsimile: (415) 398-2001 Attorneys for Plaintiffs JOHN GIDDING, PIVOTAL, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JOHN GIDDING, PIVOTAL, INC. ) ) Plaintiffs, ) ) v. ) ) DEREK ANDERSON, et al., ) ) Defendants. ) ) ) ) ) ______________________________________ ) Case No. C-7-04755-JW PLAINTIFFS' ADMINISTRATIVE MOTION FOR ORDER CONTINUING ALL MOTIONS TO DISMISS AND RESETTING BRIEFING SCHEDULE OR IN THE ALTERNATIVE FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT Civil L.R. 7-7, 7-11 [no hearing date requested]

NOW COME Plaintiffs JOHN GIDDING and PIVOTAL, INC. and do hereby move 21 this Court for an order continuing all pending motions to dismiss until June 27, 2008, a 22 Friday, at 9:00 a.m., in accordance with the Court's calendar, and resetting the briefing 23 schedule in accordance with this date pursuant to Civil Local Rules 7-7 and 7-11 or, in the 24 alternative, for an order granting leave for Plaintiffs to file a second amended complaint. 25
BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

This first part of this motion is brought on the grounds that plaintiffs JOHN GIDDING and 26 PIVOTAL, INC. have retained new counsel and counsel needs some time to familiarize 27 28
MOTION FOR ADMINISTRATIVE RELIEF -1Case No. C-7-04755-JW

Case 3:07-cv-04755-JSW

Document 44

Filed 03/05/2008

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

itself with the case in order to properly respond to the pending motions to dismiss. The alternative part of this motion is brought on the grounds that, after a review of the first amended complaint and the motions to dismiss, and after conferring with GIDDING, it appears to counsel for GIDDING that a second amended complaint is in order. BACKGROUND PLANTAGENET Defendants filed a motion to dismiss on January 31, 2008. By order dated February 1, 2008, this Court set the for March 28, 2008 on the motion to dismiss and ordered that an opposition to the motion be filed by no later than February 15, 2008 and a reply brief be filed by no later than February 22, 2008. By order dated February 8, 2008, this Court reset the hearing date to April 18, 2008, and ordered that the opposition be filed no later than March 5, 2008 and a reply be filed no later than March 17, 2008. On February 29, 2008, Defendant CHRISTOPHE RAPENEAU, SA CHAMPS RENIER filed another motion to dismiss. By order dated March 3, 2008, this Court set Defendant CHRISTOPHE RAPENEAU, SA CHAMPS RENIER's motion to dismiss for hearing on May 30, 2008, with the opposition due no later than March 21, 2008 and the reply due no later than March 28, 2008. On March 5, 2008, the same day, the date of this writing, Plaintiffs substituted Mr. Birnberg in place of Mr. Cohen as his attorney of record (docket no. 42). Immediately upon retention, Mr. Birnberg telephoned Mr. Cohen counsel for PLANTAGENET, Matthew Franklin Quint, and requested a stipulation continuing the date the opposition was due in order to permit Plaintiffs' additional time to complete and file an opposition. The request was denied. After reviewing the first amended complaint and the motions to dismiss, and after speaking with GIDDING, Mr. Birnberg believes that an amendment to the first amended complaint is in order. /// ///
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Case 3:07-cv-04755-JSW

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

LEGAL ARGUMENT Local Rule 7-7(b) provides that the noticed hearing date may be continued to a subsequent date upon order of the assigned judge, on the Court's own motion. N.D. Cal. Civil L.R. 7-7. Additionally, Local Rule 7-11 provides that "[t]he Court recognizes that during the course of case proceedings a party may require a Court order with respect to miscellaneous administrative matters, not otherwise governed by a federal statute, Federal or local rule or standing order of the assigned judge." N.D. Cal. Civil L.R. 7-11. Furthermore, Local Rule 1-2(b) states that the rules "shall be construed so as to be consistent with the Federal Rules and to promote the just, efficient, speedy and economical determination of every action and proceeding." N.D. Cal. Civil L.R. 1-2. As a preliminary matter, new counsel in this matter cannot possibly meet today's deadline for filing an opposition to the motion to dismiss. Furthermore, there are over forty docket entries of filings for counsel to review and over three hundred pages of documents that establish the background facts of this case. The complaint itself is over fifty pages in length, and names seventeen defendants, and alleges an international conspiracy involving France, Luxembourg, the Cayman Islands, that started in 1998 and continues to the present day. Surely a just determination of this case requires that new counsel have sufficient time to adequately familiarize itself with the case in order to properly oppose the motions to dismiss - particularly where, as is the case here, the motions Plaintiffs are seeking to continue are dispositive motions and the case is so complex. Plaintiffs are respectfully requesting a continuance of the hearings on the motions to dismiss to June 27, 2008, with the briefing schedule set in accordance with this new date. This continuance represents a mere one-month continuance from May 30, 2008 to June 27, 2008, during which time Defendants are not required to do anything at all. Accordingly, there can be no prejudice to any of the defendants. Furthermore, PLANTAGENET submitted a declaration in opposition to this motion before it was filed. This declaration shows no prejudice at all to PLANTAGENET
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Case 3:07-cv-04755-JSW

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

defendants. Also, it declined to state that the date the Rule 11 motion was served was the date after GIDDING left the country, returning only this week. Finally, the declaration fails to address how new counsel is expected to review the entire file and oppose the motion in a few hours. CONCLUSION For the foregoing reasons, this Court should grant Plaintiffs' request for a continuance of the hearing on both motions to dismiss set for May 30, 2008 to June 27, 2008, and reset the briefing schedule accordingly to permit Plaintiffs' new counsel time to review the file and prepare Plaintiffs' oppositions. In the alternative, GIDDING seeks leave of this Court to amend Plaintiffs' complaint to address the issues raised in the motions to dismiss. BIRNBERG & ASSOCIATES Dated: 5 March 2008 By: _/s/ Cory A. Birnberg___ Cory A. Birnberg Attorneys for Plaintiffs

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MOTION FOR ADMINISTRATIVE RELIEF -4Case No. C-7-04755-JW