OPPOSITION (re [53] MOTION to Change Time of Initial Case Management Conference); Declaration of Ryan Marcroft in Support filed by Kamala Harris. (Attachments: # (1) Exhibit A)(Marcroft, Ryan) (Filed on 12/12/2014) Modified text on 12/16/2014 (dhmS, COURT STAFF).
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Page 1 Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page1 of 5
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KAMALA D. HARRIS
Attorney General of California
MARC A. LEFORESTIER
Supervising Deputy Attorney General
RYAN MARCROFT
Deputy Attorney General
State Bar No. 230952
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-5313
Fax: (916) 324-8835
E-mail: Ryan.Marcroft@doj.ca.gov
Attorneys for All Defendants
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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THINK COMPUTER CORPORATION,
Case No. 5:11-cv-05496-HRL
Plaintiff,
v.
DEFENDANTS’ OPPOSITION TO
MOTION TO CHANGE TIME OF
INITIAL CASE MANAGEMENT
CONFERENCE; DECLARATION OF
RYAN MARCROFT IN SUPPORT
ROBERT VENCHIARUTTI, in his official
capacity as Deputy Commissioner of the
California Department of Financial
Institutions; TEVEIA R. BARNES, in her
Judge:
The Honorable Howard R. Lloyd
official capacity as Commissioner of the
Trial Date:
Not Set
California Department of Financial
Action Filed: November 14, 2011
Institutions; BRIAN P. KELLY, in his
official capacity as Acting Secretary of the
California Business, Transportation and
Housing Agency; JACOB A.
APPELSMITH, in his official capacity as
Senior Advisor to the Governor of the State
of California; EDMUND G. BROWN, JR.,
in his official capacity as Governor of the
State of California; and KAMALA
HARRIS, in her official capacity as
Attorney General of the State of California,
Defendants.
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)Page 2 Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page2 of 5
INTRODUCTION
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Defendants oppose Plaintiff’s request to advance the initial case management conference
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and its associated deadlines. The request is premature under the current procedural posture of the
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case, and is impracticable due to long-standing vacation arrangements of the Defendants’ counsel.
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Defendants, therefore, respectfully request that the Court maintain the current schedule that no
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case management conference be held until after ruling on Defendants’ motion to dismiss.
DISCUSSION
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Upon an email inquiry from Plaintiff requesting Defendants to stipulate to a status
conference regarding the status of the pending motion to dismiss, Defendants declined to so
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stipulate, because the Court’s Local Rules provide an adequate procedure to notify the Court of
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pending matters. Declaration of Ryan Marcroft (“Marcroft Declaration”) [filed herewith] at ¶¶ 2-
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3. Defendants noted that the “proper procedure for your client to notify the Court that a matter
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has been pending for more than 120 days is to file a notice under local rule 7-13, which provides
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that ‘subsequent notices may be filed at the expiration of each 120-day period thereafter until a
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ruling is made.’” Id.
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Plaintiff now moves to advance prematurely the date of the initial case management
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conference, to not only discuss the status of the motion to dismiss, but also to begin discovery and
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discuss trial setting in this case. (Docket No. 53 at 2.) Defendants object to the additional
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expense and burden of preparing for the initial case management conference and its associated
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requirements (initial disclosures and the opening of discovery) prior to a ruling on their motion to
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dismiss.
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Plaintiff already acknowledged that this case will be narrowed substantially upon the
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Court’s ruling, because the claims against many of the defendants will be dismissed. (Docket No.
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30 at 1, n. 2 [“Plaintiff does not oppose the dismissal, without prejudice, of the Governor,
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Attorney General and Acting Secretary . . . . [A]s to Defendant Appelsmith, although his name
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still appears in the caption . . ., he was removed from the charging allegations by Plaintiff’s First
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Amended Complaint. The Defendants’ motion to dismiss as to Mr. Appelsmith was
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unnecessary”].) And Defendants contend that the motion to dismiss will dispose of this entire
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)Page 3 Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page3 of 5
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action. For these reasons, Defendants concur with the Court’s prior order on this point that “it
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does not make sense to hold an initial case management conference to discuss scheduling, trial
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setting, and other issues until defendants’ motion to dismiss is resolved.” (Docket No. 35.)
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Moreover, Plaintiff stipulated (prudently) to the present case management schedule, and
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should be held to that stipulation because no changed circumstances warrant a deviation from it.
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Like the current schedule, each of the parties’ prior stipulations, and the Court’s prior
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continuances, facilitated the orderly management of this action. On January 3, 2012, the
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Defendants filed an unopposed motion for administrative relief to continue the case management
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conference from January 10 to January 31, 2012. (Docket No. 13 at 2.) The Court granted the
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motion. (Docket No. 14.) Then, on January 12, 2012, the parties jointly stipulated to extend the
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Defendants’ time to answer or otherwise respond to the initial complaint to January 23, 2012, and
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the Court approved the stipulation. (Docket No. 18.) The Court also continued the case
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management conference to February 28, 2012. (Id.) Plaintiff did not object to this continuance.
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On January 23, 2012, after the parties met and conferred regarding the original complaint, they
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stipulated that the Plaintiff would file an amended complaint by January 31, 2012. The Court
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approved the stipulation, and again sua sponte continued the case management conference to
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April 17, 2012. (Docket No 22 at 3.) Plaintiff did not object to this further continuance.
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Plaintiff filed its First Amended Complaint on January 31, 2012. (Docket No. 23.) The
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Defendants filed their motion to dismiss on February 14, 2012 (Docket No. 24), the Plaintiff filed
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its response and opposition on February 28, 2012 (Docket No. 30), and the Defendants filed their
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reply on March 6, 2012 (Docket No. 31). Thereafter, the Court sua sponte continued the hearing
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on Defendant’s motion to dismiss to April 17, 2012, and continued the case management
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conference to May 29, 2012. (Docket No. 32.) Plaintiff moved to shorten time to the case
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management conference, but the Court denied the motion in light of the Defendants’ pending
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motion to dismiss. (Docket No. 35.) After the hearing on the motion, the parties jointly
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stipulated to continue the case management conference to a date to be set by the Court
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contemporaneous with the Court’s ruling on the motion. (Docket No. 42.)
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)Page 4 Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page4 of 5
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While Defendants appreciate the cooperation between the parties that resulted in the above
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stipulations and led the Court to prudently postpone the case management conference, since the
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last stipulation in 2012, Plaintiff only once (and nine months ago) notified the Court that the
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motion to dismiss was under submission for more than 120 days. (Docket Nos. 42, 52.)
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Defendants submit that Plaintiff’s new attempt to hurry to the initial case management conference
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to commence initial disclosures and discovery is inconsistent with its prior actions, and does not
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serve the orderly administration of this case.
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Plaintiff’s suggested rush to a case management conference is also not practical. Plaintiff
requested that the Court advance the initial case management conference to January 6, 2015, with
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the case management statement due on December 30, 2014. But Defendants’ counsel is
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unavailable between December 24, 2014 and January 5, 2015, leaving insufficient time to meet
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and confer and prepare and file a statement by that date. Marcroft Declaration at ¶ 4.
CONCLUSION
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Defendants respectfully request that the Court maintain the current schedule for the initial
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case management conference and its associated deadlines to preserve the orderly administration
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of this action, and deny Plaintiff’s motion to prematurely advance the initial case management
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conference.
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Dated: December 12, 2014
Respectfully Submitted,
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KAMALA D. HARRIS
Attorney General of California
MARC A. LEFORESTIER
Supervising Deputy Attorney General
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/s/ Ryan Marcroft
RYAN MARCROFT
Deputy Attorney General
Attorneys for All Defendants
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)Page 5 Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page5 of 5
DECLARATION OF RYAN MARCROFT
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I, Ryan Marcroft, declare as follows:
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1.
I am a Deputy Attorney General and counsel of record for all Defendants. I
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submit this declaration in support of Defendants’ Opposition to Motion to Change Time of Initial
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Case Management Conference.
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2.
On November 18, 2014, Michael Aschenbrener, counsel for Think Computer
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Corporation in this action, emailed me requesting that the Defendants stipulate to filing a request
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for a status conference regarding the Defendants’ pending Motion to Dismiss. Attached as
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Exhibit A is a true and correct copy of the email exchange between Mr. Aschenbrener and me.
3.
On November 21, 2014, I replied to Mr. Aschenbrener’s email and stated that the
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Department of Business Oversight “declines to stipulate to a subsequent status conference under
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local rule 16-10(c) regarding the pending motion to dismiss. DBO believes that the proper
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procedure for your client to notify the Court that a matter has been pending for more than 120
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days is to file a notice under local rule 7-13, which provides that ‘subsequent notices may be filed
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at the expiration of each 120-day period thereafter until a ruling is made.’” Exhibit A.
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4.
I am scheduled to be on vacation and unavailable between December 24, 2014 and
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January 5, 2014, and am additionally scheduled to be out of State and unavailable between
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February 16, 2014 through February 24, 2014.
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I declare that the foregoing is true and correct under penalty of perjury under the laws of
the United States of America.
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/s/ Ryan Marcroft
Ryan Marcroft
Date: December 12, 2014
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)
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Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page1 of 5
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KAMALA D. HARRIS
Attorney General of California
MARC A. LEFORESTIER
Supervising Deputy Attorney General
RYAN MARCROFT
Deputy Attorney General
State Bar No. 230952
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-5313
Fax: (916) 324-8835
E-mail: Ryan.Marcroft@doj.ca.gov
Attorneys for All Defendants
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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THINK COMPUTER CORPORATION,
Case No. 5:11-cv-05496-HRL
Plaintiff,
v.
DEFENDANTS’ OPPOSITION TO
MOTION TO CHANGE TIME OF
INITIAL CASE MANAGEMENT
CONFERENCE; DECLARATION OF
RYAN MARCROFT IN SUPPORT
ROBERT VENCHIARUTTI, in his official
capacity as Deputy Commissioner of the
California Department of Financial
Institutions; TEVEIA R. BARNES, in her
Judge:
The Honorable Howard R. Lloyd
official capacity as Commissioner of the
Trial Date:
Not Set
California Department of Financial
Action Filed: November 14, 2011
Institutions; BRIAN P. KELLY, in his
official capacity as Acting Secretary of the
California Business, Transportation and
Housing Agency; JACOB A.
APPELSMITH, in his official capacity as
Senior Advisor to the Governor of the State
of California; EDMUND G. BROWN, JR.,
in his official capacity as Governor of the
State of California; and KAMALA
HARRIS, in her official capacity as
Attorney General of the State of California,
Defendants.
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)
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Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page2 of 5
INTRODUCTION
1
2
Defendants oppose Plaintiff’s request to advance the initial case management conference
3
and its associated deadlines. The request is premature under the current procedural posture of the
4
case, and is impracticable due to long-standing vacation arrangements of the Defendants’ counsel.
5
Defendants, therefore, respectfully request that the Court maintain the current schedule that no
6
case management conference be held until after ruling on Defendants’ motion to dismiss.
DISCUSSION
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8
9
Upon an email inquiry from Plaintiff requesting Defendants to stipulate to a status
conference regarding the status of the pending motion to dismiss, Defendants declined to so
10
stipulate, because the Court’s Local Rules provide an adequate procedure to notify the Court of
11
pending matters. Declaration of Ryan Marcroft (“Marcroft Declaration”) [filed herewith] at ¶¶ 2-
12
3. Defendants noted that the “proper procedure for your client to notify the Court that a matter
13
has been pending for more than 120 days is to file a notice under local rule 7-13, which provides
14
that ‘subsequent notices may be filed at the expiration of each 120-day period thereafter until a
15
ruling is made.’” Id.
16
Plaintiff now moves to advance prematurely the date of the initial case management
17
conference, to not only discuss the status of the motion to dismiss, but also to begin discovery and
18
discuss trial setting in this case. (Docket No. 53 at 2.) Defendants object to the additional
19
expense and burden of preparing for the initial case management conference and its associated
20
requirements (initial disclosures and the opening of discovery) prior to a ruling on their motion to
21
dismiss.
22
Plaintiff already acknowledged that this case will be narrowed substantially upon the
23
Court’s ruling, because the claims against many of the defendants will be dismissed. (Docket No.
24
30 at 1, n. 2 [“Plaintiff does not oppose the dismissal, without prejudice, of the Governor,
25
Attorney General and Acting Secretary . . . . [A]s to Defendant Appelsmith, although his name
26
still appears in the caption . . ., he was removed from the charging allegations by Plaintiff’s First
27
Amended Complaint. The Defendants’ motion to dismiss as to Mr. Appelsmith was
28
unnecessary”].) And Defendants contend that the motion to dismiss will dispose of this entire
1
Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)
PDF Page 4
Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page3 of 5
1
action. For these reasons, Defendants concur with the Court’s prior order on this point that “it
2
does not make sense to hold an initial case management conference to discuss scheduling, trial
3
setting, and other issues until defendants’ motion to dismiss is resolved.” (Docket No. 35.)
4
Moreover, Plaintiff stipulated (prudently) to the present case management schedule, and
5
should be held to that stipulation because no changed circumstances warrant a deviation from it.
6
Like the current schedule, each of the parties’ prior stipulations, and the Court’s prior
7
continuances, facilitated the orderly management of this action. On January 3, 2012, the
8
Defendants filed an unopposed motion for administrative relief to continue the case management
9
conference from January 10 to January 31, 2012. (Docket No. 13 at 2.) The Court granted the
10
motion. (Docket No. 14.) Then, on January 12, 2012, the parties jointly stipulated to extend the
11
Defendants’ time to answer or otherwise respond to the initial complaint to January 23, 2012, and
12
the Court approved the stipulation. (Docket No. 18.) The Court also continued the case
13
management conference to February 28, 2012. (Id.) Plaintiff did not object to this continuance.
14
On January 23, 2012, after the parties met and conferred regarding the original complaint, they
15
stipulated that the Plaintiff would file an amended complaint by January 31, 2012. The Court
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approved the stipulation, and again sua sponte continued the case management conference to
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April 17, 2012. (Docket No 22 at 3.) Plaintiff did not object to this further continuance.
18
Plaintiff filed its First Amended Complaint on January 31, 2012. (Docket No. 23.) The
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Defendants filed their motion to dismiss on February 14, 2012 (Docket No. 24), the Plaintiff filed
20
its response and opposition on February 28, 2012 (Docket No. 30), and the Defendants filed their
21
reply on March 6, 2012 (Docket No. 31). Thereafter, the Court sua sponte continued the hearing
22
on Defendant’s motion to dismiss to April 17, 2012, and continued the case management
23
conference to May 29, 2012. (Docket No. 32.) Plaintiff moved to shorten time to the case
24
management conference, but the Court denied the motion in light of the Defendants’ pending
25
motion to dismiss. (Docket No. 35.) After the hearing on the motion, the parties jointly
26
stipulated to continue the case management conference to a date to be set by the Court
27
contemporaneous with the Court’s ruling on the motion. (Docket No. 42.)
28
2
Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)
PDF Page 5
Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page4 of 5
1
While Defendants appreciate the cooperation between the parties that resulted in the above
2
stipulations and led the Court to prudently postpone the case management conference, since the
3
last stipulation in 2012, Plaintiff only once (and nine months ago) notified the Court that the
4
motion to dismiss was under submission for more than 120 days. (Docket Nos. 42, 52.)
5
Defendants submit that Plaintiff’s new attempt to hurry to the initial case management conference
6
to commence initial disclosures and discovery is inconsistent with its prior actions, and does not
7
serve the orderly administration of this case.
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Plaintiff’s suggested rush to a case management conference is also not practical. Plaintiff
requested that the Court advance the initial case management conference to January 6, 2015, with
10
the case management statement due on December 30, 2014. But Defendants’ counsel is
11
unavailable between December 24, 2014 and January 5, 2015, leaving insufficient time to meet
12
and confer and prepare and file a statement by that date. Marcroft Declaration at ¶ 4.
CONCLUSION
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Defendants respectfully request that the Court maintain the current schedule for the initial
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case management conference and its associated deadlines to preserve the orderly administration
16
of this action, and deny Plaintiff’s motion to prematurely advance the initial case management
17
conference.
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Dated: December 12, 2014
Respectfully Submitted,
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KAMALA D. HARRIS
Attorney General of California
MARC A. LEFORESTIER
Supervising Deputy Attorney General
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/s/ Ryan Marcroft
RYAN MARCROFT
Deputy Attorney General
Attorneys for All Defendants
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)
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Case5:11-cv-05496-HRL Document54 Filed12/12/14 Page5 of 5
DECLARATION OF RYAN MARCROFT
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I, Ryan Marcroft, declare as follows:
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1.
I am a Deputy Attorney General and counsel of record for all Defendants. I
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submit this declaration in support of Defendants’ Opposition to Motion to Change Time of Initial
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Case Management Conference.
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2.
On November 18, 2014, Michael Aschenbrener, counsel for Think Computer
8
Corporation in this action, emailed me requesting that the Defendants stipulate to filing a request
9
for a status conference regarding the Defendants’ pending Motion to Dismiss. Attached as
10
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Exhibit A is a true and correct copy of the email exchange between Mr. Aschenbrener and me.
3.
On November 21, 2014, I replied to Mr. Aschenbrener’s email and stated that the
12
Department of Business Oversight “declines to stipulate to a subsequent status conference under
13
local rule 16-10(c) regarding the pending motion to dismiss. DBO believes that the proper
14
procedure for your client to notify the Court that a matter has been pending for more than 120
15
days is to file a notice under local rule 7-13, which provides that ‘subsequent notices may be filed
16
at the expiration of each 120-day period thereafter until a ruling is made.’” Exhibit A.
17
4.
I am scheduled to be on vacation and unavailable between December 24, 2014 and
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January 5, 2014, and am additionally scheduled to be out of State and unavailable between
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February 16, 2014 through February 24, 2014.
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I declare that the foregoing is true and correct under penalty of perjury under the laws of
the United States of America.
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/s/ Ryan Marcroft
Ryan Marcroft
Date: December 12, 2014
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Opposition To Motion To Change Time To Initial Case Management Conference (5:11-cv-05496-HRL)
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