1 A SUE ANN SALMON EVANS, State Bar N0. 151562
AMY R. LEVINE, State Bar No. 160743
2 MATTHEW IUHL-DARLINGTON, State Bar No. 215375 I
MILLER BROWN & DANNIS
3 71 Stevenson Street, 19th Floor .
San Francisco, CA 94105
4 Telephone: (415) 543-4111
Facsimile: (415) 543-4384
5
Attorneys for Defendants
6 MOUNT DIABLO UNIFIED SCHOOL DISTRICT, MILDREDE
BROWN, and KEN FERRO
K
8 UNITED STATES DISTRICT COURT
5 9 NORTHERN DISTRICT OF CALIFORNIA _
-
IQ LEQ 10
§ ·-
is QQ himself and parent and next of friend to -
§§ Q ` 12 Mike Jr. and Ryan disabled minor children DISTRICT DEF ENDANTS’ REPLY IN - p
EE g Q 13 PRO SE, SUPPORT OF THEIR MOTION FOR A
E MORE DEFINITE STATEMENT AND/OR TO
§ Q 5 14 Plaintiffs, STRIKE THE COMPLAINT PURSUANT TO
2 m FEDERAL RULE OF CIVIL PROCEDURE .
" 15 v. l2(e)
I 16 CALIFORNIA SPECIAL EDUCATION
17 HEARING OFFICE, MCGEORGE Hearing Date: November 9, 2007 I
SCHOOL or LAW et al. HEARING l Hearing Time: 9:00 a.m.
18 OFFICER, VINCENT PASTORINO Courtroom: ` 10, 19th Flr. I
MOUNT DIABLO UNIFIED SCHOOL Judge: ‘ Hon. Susan Illston _
19 DISTRICT et al MILDRED BROWN, ‘
individually and in her official capacity as Trial: None <
20 assistant superintendent of special I
21 education KEN FERRO, individually and
A in his official capacity as Altemative
22 Dispute Resolution Administrator, ·
23 Defendants.
24
25 . . . . . . . . .
Plaintiffs opposition to the District Defendants’ motion for a more definite statement 1S
26
possibly more vague and confusing than the Com laint. The opposition com letel fails to
_ P P Y
27
address the points made in the District Defendants’ motion and reveals no reason why leave to
28 1
DISTRICT DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR A MORE DEFINITE STATEME
AND/OR TO STRIKE THE COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE l2(e)
SF 284636vl CASE NO. C07-02400
Case 3:O7—cv-02400-SI Document 31 Filed 10/2472007 Page 2 of 4 Q
_ 1 amend should be granted. Accordingly, the District Defendants request that the Complaint be
2 stricken without leave to amend.
3 I. PLAINTIFF F AILS TO EXPLAIN, WHAT HIS CLAIMS ARE
4 Plaintiffs opposition fails to address any of the defects the District Defendants raised in
5 their motion, including;
6 1. What the difference is between the first and third claim for relief; A
7 2. What claims are alleged against the Mount Diablo Unified School District;
8 3. What are the factual and legal contentions supporting the claims for relief;
S A 9 4. Which of the laintiffs is ursuing which theories against which
O P P
Q L; § 10 defendants; 1
5 ·—
¤; EQ capacities, what they did in their individual capacities, and in which ‘ -
gg § 12 capacity they are being sued under each legal theory; _
cg Z U
ggé 13 6. What specific provisions of Section 504 of the Rehabilitation Act, the
E 14 Americans with Disabilities Act, 42 U.S.C. section 1983, and 42 U.S.C.
GLF section 1985 were violated (and when, how, by whom and against which
E 1 5 plaintiff);
16 7. What specific "Federal and State contracts," "public contract codes," and
“public policy contracts" were violated (and when, how, by whom and
17 against which plaintiff); I
18 8. Under what law plaintiff claims. any of the District Defendants is liable for *
19 "retaliation as a direct violation of above stated contract laws" (and when, --
how, by whom and against which plaintiff did the retaliation occur); q
20 to
9. What are the specific contracts and contract terms that the District
21 Defendants breached, how and when the breach occurred, how plaintiffs
were damaged as a result, and why plaintiffs are entitled to enforce the
22 contracts if the contracts are with third parties; and ·
23 10. Under which claims and against which defendants are they seeking the
24 various remedies requested (compensatory damages, punitive damages,
l injunctive relief, declaratory relief, and attorneys’ fees). 7
25 n
- Plaintiffs only explanation of his allegations is by reference to paragraphs 14, 16, 17, 18
26
and 19 of the Complaint. (Oppn., at 2:11) Plaintiff alleges in these paragraphs that each of the
27
defendants was the employee or agent ofthe other defendants and was acting within the course,
28 2
DISTRICT DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR A MORE DEFINITE STATEMEN
AND/OR TO STRIKE THE COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(e);
SF 284636v1 CASE NO. C07—02400 _
Case 3:07-cv-02400-SI Document 31 Filed 10/24/2007 Page 3 of 4 Q
l 1 scope and authority of that relationship. (Compl., at 1] 14, 18 and 19) However, the fact that the
2 District Defendants allegedly were acting as agents for each other does not answer any of the C
3 questions those Defendants have raised in their motion. At best, it seems to suggest that plaintiff
4 believes that the individual District Defendants were acting in their official capacities (since they
5 were the agents of the District), but it is far from clear. Thus, this explanation falls far short of
6 l addressing the many defects of plaintiffs Complaint. V
7 Beyond that, plaintiff s only other point with respect to his poor pleading is that he should
8 be given 30 days to amend. However, since he has not made any cogent argument about how the `
5 9 Complaint could be amended to address these defects, the Court should exercise its discretion and _
gg? 10 strike the Complaint without leave to amend.] W
gg? 11 II. THE DISTRICT DEFENDANTS HAVE NOT WAIVED ANY DEFENSE BY
°; E3 12 SEEKING A MORE DEFINITE STATEMENT —
cigg 13 Plaintiff argues, without citing any authority, that the District Defendants have waived I
14 other defenses to this action by failing to bring a motion under Federal Rules of Civil Procedure
I-: 15 l2(b) when they filed their motion for a more definite statement. This argument is plainly belied
16 by the language of Rule l2(e) itself which says that "[i]f a pleading to which a responsive
17 pleading is permitted is so vague or ambiguous that aparty cannot reasonably be required to g
18 frame a responsive pleading, the party may move for a more definite statement before interposing p
19 a responsive pleading? (Emphasis added.) Thus, the Rule clearly contemplates a request to have -
20 the pleading clarified gig other defenses are interposed, and, indeed that is the very purpose for g
21 the Rule.
_ 22 Further, a motion under Rule l2(b) can be made at any time before a responsive pleading
23 — i.e., an answer is filed. Fed. R. Civ. Proc. 12(b); Bechtel v. Liberty Nat. Bank 534 F.2d 1335,
24 1341 (9th Cir. 1976). And, the defenses of lack of subject matters jurisdiction and failure to state
25 a claim upon which relief can be granted are never waived, and can be raised at any time,
26 including at trial. Fed. R. Civ. Proc. 12(g), 12(h)(2),(3); Marrero-Gutierrez v. Molina, 491 F.3d
27 ‘ If the Court does grant leave to amend, District Defendants request that they be given 30 days from the filing and
I service of an amended complaint to respond.
28 ‘ 3
DISTRICT DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR A MORE DEF INITE STATEMEN
AND/OR TO STRIKE THE COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(e);
SF 284636v1 CASE NO. C07-02400
Case 3:07-cv-02400-SI Document 31 Filed 10/24/2007 Page 4 of 4 Q
1 1, 6-7 (lst Cir. 2007).
2 For these same reasons, the District Defendants did not waive their other defenses by I
3 joining in the McGeorge Defendants motion to dismiss.2
4 III. CONCLUSION I
5 For the foregoing reasons and those set forth in the moving papers, the District Defendants
6 request that their motion be granted and the Complaint be stricken without leave to amend.
7 DATED: October 24, 2007 MILLER BROWN & DANNIS I
8
tx 9 I
Em By: Am R. Levine
E L; 3 10 A SUE ANN SALMON EVANS
is gx ‘ AMY R. LEVIN E
¤ Ta 11 MATTHEW JUHL-DARLINGTON
°; QQ Attorneys for Defendants -
gg § 12 MOUNT DIABLO UNIFIED SCHOOL
,5 Z G A DISTRICT, MILDREDE BROWN, and KEN C
sa §§ 13 Fnnno
j Lu LL. V
14 I
E 15 . _
16 l
17 C
18 . 4
19 I
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27 2 The District Defendants incorporate herein the McGeorge Defendants’ reply in support of their motion to dismiss
on the grounds that plaintiffs have failed to properly exhaust their administrative remedies.
28 4 .
DISTRICT DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR A MORE DEF INITE STATEMEN
AND/OR TO STRIKE THE COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(e);
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