Free Order - District Court of California - California

Case 3:07-cv-02769-JL

Document 126

Filed 02/21/2008

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

FRANK NEMIROFSKY, Plaintiff, v. SEOK KI KIM, Defendant. ________________________________/

No. C 07-2769 JL BRIEFING ORDER

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On Plaintiff Nemirofsky's 's motion to dismiss Defendant Seok Ki Kim's counterclaim 18 for abuse of process (Docket # 85), Plaintiff for the first time in his Reply brief raised the 19 issue of the litigation privilege as an affirmative defense to this counterclaim. The Court 20 hereby grants to Kim an opportunity to respond, within twenty days of the issuance of this 21 Order. 22 The Court is particularly interested in the following cases: Rusheen v. Cohen, 37 23 Cal.4th 1048 (2006);Brown v. Kennard, 94 Cal. App. 4th 40 (2001); Profile Structures, Inc. 24 v. Long Beach Bldg. Material Co., 181 Cal. App. 3d 437 (1986), and the following 25 questions: (1) what, if any, non-litigation alternatives to the Abuse of Process claim were 26 available to Kim to address the allegedly excessive TPO, and (2) whether Nemirofsky has 27 28

C-07-2769 BRIEFING ORDER

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Case 3:07-cv-02769-JL

Document 126

Filed 02/21/2008

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waived the affirmative defense of the litigation privilege as provided by Rule 8(c), Federal Rules of Civil Procedure by not raising the issue in his 12(f) motion but only in his Reply? Nemirofsky may respond within fourteen days of service of Kim's response and the matter will be deemed submitted at that time. The parties should limit their briefs to no more than fifteen pages. IT IS SO ORDERED. DATED: February 21, 2008 __________________________________ James Larson Chief Magistrate Judge

United States District Court

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For the Northern District of California

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G:\JLALL\CHAMBERS\CASES\CIVIL\07-2769\Order-briefing99.wpd

C-07-2769 BRIEFING ORDER

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