Free Reply to Opposition - District Court of California - California

Case 4:07-cv-03334-CW

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Filed 08/23/2007

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1 PATRICIA K. GILLETTE (No. 74461) GREG J. RICHARDSON (No. 203788) 2 BROOKE D. ANDRICH (No. 238836) 3 HELLER EHRMAN LLP 333 Bush Street 4 San Francisco, CA 94104-2878 5 Telephone: +1.415.772.6000 Facsimile: +1.415.772.6268 6 Email: [email protected] Email: [email protected] 7 Email: [email protected] 8 9 Attorneys for Defendants GREATER BAY BANK, GREATER BAY BANCORP, 10 CHERYL E. HOWELL, KRYSTYNA MARCINIAK, 11 CATHLEEN COLGAN, and ERIC LEE 12 13 14 15 16 GERARD CHANG, 17 18 19 v. Plaintiff, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No.: C 07-3334 CW DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Judge: Location: Date: Time: Hon. Claudia Wilken Courtroom 2, 4th Floor September 6, 2007 2:00 p.m.

20 GREATER BAY BANK, GREATER BAY BANCORP, CHERYL E. HOWELL, 21 KRYSTYNA MARCINIAK, CATHLEEN 22 COLGAN, ERIC LEE, and DOES 1 TO 50, 23 24 25 26 27 28 Defendants.

DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

Case 4:07-cv-03334-CW

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I.

INTRODUCTION Plaintiff Gerard Chang's opposition to Defendants' Greater Bay Bank, Greater Bay

Bancorp, Cheryl Howell, Krystyna Marciniak, Cathleen Colgan, and Eric Lee's (collectively, "Defendants") Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) fails to address, let alone competently oppose, the substantive basis of Defendants' motion. He offers no reason why the principle of res judicata should not apply here to bar his suit. Nor can he. The law is clear: Plaintiff is barred from bringing claims premised on the same transactional nucleus of facts as his prior lawsuits against Defendants. Thus, Plaintiff's Complaint in its entirety is incurably defective and should be dismissed without leave to amend. II. ARGUMENT Though Plaintiff purports to oppose Defendants' motion to dismiss his Complaint, in his Statement of Opposition to Defendants' Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiff's Complaint ("Obj. to Motion"), Plaintiff fails to put forth any argument ­ much less any legal authority ­ to rebut the basis for Defendants' motion: that his claims are barred by res judicata because they arise from the same transactional nucleus of facts as his prior lawsuits against Defendants. Instead, Plaintiff merely restates his claims and insists that "all facts and circumstances must be presented to a jury." (Obj. to Motion, 3:3.) Without more, however, Plaintiff cannot possibly hope to refute the principle of law that his claims are barred and must be dismissed because they have been previously raised by Plaintiff and adjudicated by this Court. If Plaintiff believes that this Court erred in dismissing Plaintiff's prior lawsuits against Defendants, the proper avenue of recourse is appeal to the Ninth Circuit Court of Appeals-- an option Plaintiff is already availing himself of--not the incessant filing of repetitive lawsuits against Defendants. Defendants will not burden the Court with further argument here. Suffice it to say, as set forth in Defendants' opening papers, that all of the 30 causes of action alleged by 1
DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

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1 Plaintiff in the instant Complaint are barred by res judicata, as they arise from the same 2 transactional nucleus of facts from which Plaintiff's two prior complaints arose. To the 3 extent Plaintiff's Complaint repackages his factual allegations into new legal theories, these 4 new causes of action are also barred on the basis of res judicata and, alternatively, are 5 substantively defective. As a result, Plaintiff's Complaint is incurably defective in its 6 entirety and should be dismissed without leave to amend. 7 III. 8 CONCLUSION For the reasons set forth herein, Defendants respectfully request that the Court grant

9 Defendants' Motion to Dismiss Plaintiff's Complaint without leave to amend. 10 11 DATED: August 23, 2007 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6); CASE NO. C 07-3334 CW

Respectfully submitted, HELLER EHRMAN LLP

By /S/ Brooke D. Andrich PATRICIA K. GILLETTE GREG J. RICHARDSON BROOKE D. ANDRICH Attorneys for Defendants GREATER BAY BANK, GREATER BAY BANCORP, CHERYL E. HOWELL, KRYSTYNA MARCINIAK, CATHLEEN COLGAN, and ERIC LEE