Free Motion for Extension of Time to File Response/Reply - District Court of California - California

Case 3:07-cv-03758-SC

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GORDON P. ERSPAMER (CA SBN 83364) [email protected] STACEY M. SPRENKEL (CA SBN 241689) [email protected] PAUL J. TAIRA (CA SBN 244427) [email protected] MORRISON & FOERSTER LLP 101 Ygnacio Valley Road, Suite 450, P.O. Box 8130 Walnut Creek, California 94596-8130 Telephone: 925.295.3300 Facsimile: 925.946.9912 [see next page for additional counsel for Plaintiffs] Attorneys for Plaintiff(s) 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, a District of Columbia Nonprofit Organization; and VETERANS UNITED FOR TRUTH, INC., a California Nonprofit Organization, representing their members and a class of all veterans similarly situated, Plaintiffs, v. (N.D. CAL. L.R. 6-3) R. JAMES NICHOLSON, Secretary of Department of Veterans Affairs; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; JAMES P. TERRY, Chairman, Board of Veterans Appeals; DANIEL L. COOPER, Under Secretary, Veterans Benefits Administration; BRADLEY G. MAYES, Director, Compensation and Pension Service; DR. MICHAEL J. KUSSMAN, Under Secretary, Veterans Health Administration; PRITZ K. NAVARA, Veterans Service Center Manager, Oakland Regional Office, Department of Veterans Affairs; UNITED STATES OF AMERICA; ALBERTO GONZALES, Attorney General of the United States; and WILLIAM P. GREENE, JR., Chief Judge of the United States Court of Appeals for Veterans Claims, Defendants. Place: Courtroom No. 1, 17th Floor The Honorable Samuel Conti Complaint filed: July 26, 2007 Case No. CV 07-3758 SC

CLASS ACTION PLAINTIFFS' MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANTS' MOTION TO DISMISS

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ADDITIONAL COUNSEL FOR PLAINTIFFS: ARTURO J. GONZALEZ (CA SBN 121490) [email protected] HEATHER A. MOSER (CA SBN 212686) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 SIDNEY M. WOLINSKY (CA SBN 33716) [email protected] MELISSA W. KASNITZ (CA SBN 162679) [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

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Pursuant to Civil Local Rule 6-3, Plaintiffs VETERANS FOR COMMON SENSE and VETERANS UNITED FOR TRUTH, INC. ("Plaintiffs") move to enlarge the time to respond to Defendants' Motion to Dismiss. Plaintiffs received Defendants' Motion to Dismiss on September 25, 2007. It is a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants raise numerous complex legal arguments and issues including: Standing; Sovereign immunity; Whether the Court has subject matter jurisdiction; Whether the Veterans Judicial Review Act ("VJRA") forecloses review of constitutional challenges; Whether the VJRA forecloses a Rehabilitation Act claim; Whether 38 U.S.C. § 1710 provides a private right of action; Whether Plaintiffs' right of access to the courts claim is independent of their due process claims; The merits of Plaintiffs' procedural due process and access to courts claims; and The applicability of cases involving Congressional war powers. Plaintiffs need adequate time to research and address these issues, especially given the importance of the issues raised in the Complaint. In addition, Defendants' Motion to Dismiss cites to more than 100 authorities and the table of authorities alone spans 9 pages. Defendants had over sixty days to respond to Plaintiffs' Complaint, which was served on July 26, 2007. Plaintiffs need more time than the 17 days currently available pursuant to the Local Rules to prepare their Opposition to the Motion to Dismiss. Plaintiffs attempted to arrange a longer briefing schedule with Defendants, but the parties were unable to reach agreement. (Declaration of Heather A. Moser In Support of Plaintiffs' Motion to Enlarge Time ("Moser Decl.") ¶ 3.) Due to the complexity of the numerous legal issues raised in the Motion to Dismiss, Plaintiffs will be prejudiced by having inadequate time to fully address and respond to these legal issues.
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(Moser Decl. ¶¶ 2, 4.) Plaintiffs have not previously sought any extensions of time. (Moser Decl. ¶ 5.) Granting the extension would not affect any dates currently set in this matter other than the hearing date for the Motion to Dismiss. (Moser Decl. ¶ 6.) For the foregoing reasons, Plaintiffs respectfully request that the Court enter an order enlarging the time by which they must respond to Defendants' Motion to Dismiss by thirty days, continuing the due date from October 12, 2007 to November 13, 2007. Plaintiffs further request that the Motion to Dismiss hearing date be continued from Friday, November 2, 2007 until Friday, December 7, 2007, or as soon thereafter as the matter may be heard.

Dated: September 28, 2007

GORDON P. ERSPAMER HEATHER A. MOSER STACEY M. SPRENKEL PAUL J. TAIRA MORRISON & FOERSTER LLP

By: /s/ Gordon P. Erspamer Gordon P. Erspamer Attorneys for Plaintiffs VETERANS FOR COMMON SENSE AND VETERANS UNITED FOR TRUTH, INC.

I, Heather A. Moser, am the ECF user whose ID and password are being used to file this MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANTS' MOTION TO DISMISS. In compliance with General Order 45.X.B, I hereby attest that Gordon P. Erspamer has concurred in this filing.

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