Miller v. Lieutenant Governor Craig Campbell et al

Filing 20

RESPONSE in Opposition re 18 MOTION to Expedite ON MOTION TO DISMISS filed by Joe Miller. (Van Flein, Thomas)

Miller v. Lieutenant Governor Craig Campbell et al

Doc. 20

Case 3:10-cv-00252-RRB Document 20

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Thomas V. Van Flein Clapp, Peterson, Van Flein, Tiemessen & Thorsness LLC 711 H St., Suite 620 Anchorage, Alaska 99501-3454 Phone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorney for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ) JOE MILLER, ) ) Plaintiff, ) ) v. ) ) LIEUTENANT GOVERNOR CRAIG ) CAMPBELL, in his official capacity; ) and THE STATE OF ALASKA, ) DIVISION OF ELECTIONS, ) ) Defendants. ) ___________________________________ ) Civil Action No: 3:10-CV-00252 (RRB)

OPPOSITION TO DEFENDANTS' MOTION FOR SHORTENED TIME ON MOTION TO DISMISS Plaintiff Joe Miller respectfully requests that this Court deny Defendants' Motion for Shortened Time on Motion to Dismiss (hereafter, "Motion to Shorten Time"). In this Court's briefing schedule for Plaintiff Miller's Motion for a Preliminary Injunction, it stated, "The parties shall address the significant jurisdictional issue raised by this matter in their briefing,"

Opposition to Defendants' Motion for Shortened Time on Motion to Dismiss Miller v. Campbell, et al., Case No. 3:10-cv-252-RRB Page 1 of 4

Dockets.Justia.com

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Order Regarding Motion for Preliminary Injunction, at 3 (Nov. 10, 2010) (hereafter, "Order").1 This directive clearly required the parties to address any jurisdictional concerns in their briefs regarding the preliminary injunction Plaintiff Miller is seeking. Yesterday, Defendants nevertheless filed an independent, sixteen-page Motion to Dismiss for Lack of Federal Question Jurisdiction, or in the Alternative to Abstain (hereafter, "Motion to Dismiss"). As this motion's title implies, it not only challenges the validity of Plaintiff Miller's causes of action, but injects an entirely new issue into the case--whether this Court should abstain, under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941), from exercising jurisdiction over this matter. Defendants now ask this Court to give Plaintiff Miller slightly more than 48 hours to research these issues and file his opposition brief. They do not

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contend that any emergency or exigent circumstances warrant such an unreasonably compressed briefing schedule, but rather maintain only, "[I]t is appropriate that this motion be decided before Mr. Miller's motion for a preliminary injunction is considered." Motion to Shorten Time at 2. Although Defendants are correct that this Court must decide that it has jurisdiction over this case before reaching its merits, that does not imply that the jurisdictional issues must be briefed on a separate, accelerated track. Furthermore, as noted above, this Court already set a target of Thursday, November 18, at 3:00 P.M. for the completion of briefing regarding both jurisdictional issues and the issuance of a preliminary injunction. See Order at 3. Defendants

Defendants' Opposition Memorandum is due at 3:00 P.M. on Monday, November 15, 2010, and Plaintiff Miller's Reply Memorandum is due at 3:00 P.M. on Thursday, November 18, 2010. Order at 2. Opposition to Defendants' Motion for Shortened Time on Motion to Dismiss Miller v. Campbell, et al., Case No. 3:10-cv-252-RRB Page 2 of 4

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will not suffer any harm if this Court allows these issues to be briefed on parallel tracks, and maintains the November 18 deadline for the completion of briefing on both the jurisdictional and preliminary injunction issues. "[N]o exigent circumstances warrant" the extremely

compressed briefing schedule Defendants seek. Id. at 2. It also should be noted that today, November 11, 2010, is Veterans' Day, a federal holiday. If the Court therefore does not issue an Order on this Motion until tomorrow, that would give Plaintiff Miller only a few hours notice that the highly expedited deadline Defendants seek to have imposed. Plaintiff Miller therefore respectfully asks that this Court deny Plaintiff's Motion. The Court instead should order that Plaintiff Miller's Opposition Memorandum is due on Monday,

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November 15, at 3:00 P.M., and Defendants' Reply Memorandum is due on Thursday, November 18, at 3:00 P.M. Imposing these reasonable deadlines will ensure that all parties have a reasonable opportunity to research and respond to all arguments, while continuing to meet the Court's original target date of November 18 for the completion of briefing. Dated this 11th day of November, 2010. Respectfully submitted, __/s/ Thomas V. Van Flein_____________ Thomas V. Van Flein CLAPP, PETERSON, VAN FLEIN TIEMESSEN & THORSNESS LL 711 H St., Suite 620 Anchorage, Alaska 99501-3454 Phone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorney for Plaintiff
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CERTIFICATE OF SERVICE I, Thomas V. Van Flein, hereby certify that on this 11th day of November, 2010, I did cause a true, correct, and complete copy of the foregoing Opposition to Defendants' Motion for Shortened Time on Motion to Dismiss to be served electronically on Margaret Paton Walsh Assistant Attorney General Counsel for Defendants __/s/ Thomas V. Van Flein_____________

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