Perry et al v. Schwarzenegger et al

Filing 729

MOTION for Extension of Time to File a Motion for Attorney's Fees and Related Expenses filed by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 8/17/2010)

Perry et al v. Schwarzenegger et al Doc. 729 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson, SBN 38137 tolson@gibsondunn.com Matthew D. McGill, pro hac vice 1050 Connecticut Avenue, N.W., Washington, D.C. 20036 Telephone: (202) 955-8668, Facsimile: (202) 467-0539 Theodore J. Boutrous, Jr., SBN 132009 tboutrous@gibsondunn.com Christopher D. Dusseault, SBN 177557 Ethan D. Dettmer, SBN 196046 333 S. Grand Avenue, Los Angeles, California 90071 Telephone: (213) 229-7804, Facsimile: (213) 229-7520 BOIES, SCHILLER & FLEXNER LLP David Boies, pro hac vice dboies@bsfllp.com 333 Main Street, Armonk, New York 10504 Telephone: (914) 749-8200, Facsimile: (914) 749-8300 Jeremy M. Goldman, SBN 218888 jgoldman@bsfllp.com 1999 Harrison Street, Suite 900, Oakland, California 94612 Telephone: (510) 874-1000, Facsimile: (510) 874-1460 Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO Dennis J. Herrera, SBN 139669 Therese M. Stewart, SBN 104930 Danny Chou, SBN 180240 One Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-4708, Facsimile (415) 554-4699 Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., Plaintiffs, and CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. ARNOLD SCHWARZENEGGER, et al., Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors. CASE NO. 09-CV-2292 VRW PLAINTIFFS' AND PLAINTIFFINTERVENOR'S MOTION TO ENLARGE TIME [Declaration of Enrique A. Monagas in Support and Proposed Order Filed Concurrently Herewith] 09-CV-2292 VRW PLAINTIFFS' AND PLAINTIFF-INTERVENOR'S MOTION TO ENLARGE TIME Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Civil Local Rule 6-3 Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo ("Plaintiffs") and Plaintiff-Intervenor City and County of San Francisco ("Plaintiff-Intervenor") hereby move this Court to enlarge the time to file a motion for attorney's fees and related expenses until 30 days after all appeals become final. Federal Rule of Civil Procedure 54(d)(2)(B)(i) provides that unless a court order mandates otherwise, a motion for attorney's fees and related expenses must be "filed no later than 14 days after the entry of judgment." In a case such as this one, however, where the parties expended significant resources on pre-trial motions, discovery, a three-week trial, and post-trial briefing and argument, the preparation of a motion for attorney's fees and related expenses--and any opposition thereto--is likely to be unusually time consuming. On August 16, 2010, the United States Court of Appeals for the Ninth Circuit ordered that Proponents' appeal from this Court's decision be expedited pursuant to Federal Rule of Appellate Procedure 2 and entered the following briefing schedule: the opening brief is due September 17, 2010; the answering brief is due October 18, 2010; and the reply brief is due November 1, 2010. Under the current schedule, any motion for attorney's fees and related expenses must be prepared and submitted at the same time that the expedited appeal on the merits is proceeding. Enlarging the time to file a motion for attorney's fees and related expenses would enable the parties to commit their full litigation resources to the appeal at this time and would allow any motion for fees and related expenses to proceed only at such time as the prevailing party has been finally determined. This enlargement would allow the Court to rule on all fee issues at the conclusion of the case, including fees incurred on appeal, rather than in piecemeal fashion and would thus promote judicial economy. Other courts have granted similar extensions. See, e.g., Planned Parenthood of Cent. N.J. v. Attorney Gen. of N.J., 297 F.3d 253, 258 (3d Cir. 2002) (observing that "the District Court entered an order extending the time to file for attorneys' fees until 30 days after the conclusion of all appeals in the case."). And the Court does not lose jurisdiction by deferring motions for attorney's fees and related expenses until after the appeals. See Fed. R. Civ. P. 54 advisory 2 09-CV-2292 VRW PLAINTIFFS' AND PLAINTIFF-INTERVENOR'S MOTION TO ENLARGE TIME 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP committee's note to 1993 amendments; see also Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957 (9th Cir. 1983). "One purpose of [the 14-day timeline] is to assure that the opposing party is informed of the claim [for attorney's fees] before the time for appeal has elapsed." Fed. R. Civ. P. 54 advisory committee's note to 1993 amendments. Where, as here, Defendant-Intervenors have already filed their notice of appeal, the 14-day timeline is unnecessary and Proponents will not be prejudiced by an enlargement of time. Plaintiffs' counsel has met and conferred with all parties via electronic mail. Defendants Arnold Schwarzenegger, Edmund G. Brown, Jr., Mark B. Horton, Linette Scott, Patrick O'Connell, and Dean C. Logan have all agreed to enlarging the time as outlined above. Monagas Decl., Exs. A, B, C, and D. Counsel for Hak-Shing William Tam did not respond to Plaintiffs' counsel's inquiry. Only Defendant-Intervenors Proposition 8 Official Proponents Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, and Mark A. Jansson; and ProtectMarriage.com Yes on 8, A Project of California Renewal ("Defendant-Intervenors") have not agreed to the extension. Monagas Decl., Ex. E. The Defendant-Intervenors offered no explanation whatsoever for their opposition. Because enlarging the time to file a motion for attorney's fees and related expenses will not prejudice any party and will indeed avoid unnecessary burden to the parties and the Court while the parties address the appeal on the merits and promote judicial economy, and because all parties--save Defendant-Intervenors--have agreed to the extension of time, Plaintiffs and Plaintiff-Intervenor respectfully request that the Court grant their motion to enlarge the time to file a motion for attorney's fees and related expenses until 30 days after all appeals become final. /// /// /// 3 09-CV-2292 VRW PLAINTIFFS' AND PLAINTIFF-INTERVENOR'S MOTION TO ENLARGE TIME 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP In the event the Court does not grant Plaintiffs' and Plaintiff-Intervenor's request for motion to enlarge time until 30 days after all appeals become final, Plaintiffs and Plaintiff-Intervenor respectfully request the following modest, alternative extension of time: 1. The movant(s) shall file a motion for attorney's fees and related expenses within 45 days of the later of: (A) the entry of an order resolving the instant motion, or (B) the entry of judgment by this Court; 2. Those seeking to oppose the motion for attorney's fees and related expenses shall have 45 days after the motion is filed to do so; and 3. The movant(s) shall then have 30 days to reply to the opposition. Respectfully submitted, DATED: August 17, 2010 GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson Theodore J. Boutrous, Jr. Christopher D. Dusseault Ethan D. Dettmer Matthew D. McGill Amir C. Tayrani Sarah E. Piepmeier Theane Evangelis Kapur Enrique A. Monagas By: and /s/ Theodore B. Olson BOIES, SCHILLER & FLEXNER LLP David Boies Jeremy M. Goldman Roseanne C. Baxter Richard J. Bettan Beko O. Richardson Theodore H. Uno Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO /// /// /// 4 09-CV-2292 VRW PLAINTIFFS' AND PLAINTIFF-INTERVENOR'S MOTION TO ENLARGE TIME 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney DANNY CHOU Chief of Complex and Special Litigation RONALD P. FLYNN VINCE CHHABRIA ERIN BERNSTEIN CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys By: /s/ Therese M. Stewart Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO 5 09-CV-2292 VRW PLAINTIFFS' AND PLAINTIFF-INTERVENOR'S MOTION TO ENLARGE TIME 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP ATTESTATION PURSUANT TO GENERAL ORDER NO. 45 Pursuant to General Order No. 45 of the Northern District of California, I attest that concurrence in the filing of the document has been obtained from each of the other signatories to this document. By: /s/ Enrique A. Monagas 100921581_1.DOC