Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al

Filing 50

MOTION to DISMISS by Kamehameha Schools/Bernice Pauahi Bishop Estate, J. Douglas Ing, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, Corbett A.K. Kalama. Motion Hearing set for 10/31/08 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr. (Wadsworth, Clyde)

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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 ALSTON HUNT FLOYD & ING PAUL ALSTON (Admitted Pro Hac Vice) CLYDE J. WADSWORTH (SBN 118928) palston@ahfi.com cwadsworth@ahfi.com American Savings Bank Tower 1001 Bishop Street, 18th Floor Honolulu, HI 96813 Telephone: (808) 524-1800 Facsimile: (808) 524-4591 BINGHAM McCUTCHEN LLP CHARLENE S. SHIMADA (SBN 91407) JOHN D. PERNICK (SBN 155468) ROBERT BRUNDAGE (SBN 159890) charlene.shimada@bingham.com john.pernick@bingham.com robert.brundage@bingham.com Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: (415) 393-2000 Facsimile: (415) 393-2286 Attorneys for Defendants and Cross-Defendants KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; J. DOUGLAS ING, NAINOA THOMPSON, DIANE J. PLOTTS, ROBERT K.U. KIHUNE, and CORBETT A.K. KALAMA, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Estate UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ERIC GRANT, Plaintiff, v. KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; et al., Defendants. And Related Cross and Counterclaims. CASE NO. 2:08-cv-00672-FCD-KJM NOTICE OF MOTION AND KAMEHAMEHA SCHOOLS DEFENDANTS' AND CROSSCLAIM DEFENDANTS' MOTION TO DISMISS_______________________________ Date: October 31, 2008 Time: 10:00 a.m. Courtroom: 2 Before: Hon. Frank C. Damrell, Jr. 682394/2 8348/4 NOTICE OF MOTION AND KAMEHAMEHA SCHOOLS DEFENDANTS' AND CROSS-CLAIM DEFENDANTS' MOTION TO DISMISS; CASE NO.08-00672 FCD-KJM 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 682394/2 8348/4 NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants and Cross-Claim Defendants KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; J. DOUGLAS ING, NAINOA THOMPSON, DIANE J. PLOTTS, ROBERT K.U. KIHUNE, and CORBETT A.K KALAMA, in their capacities as Trustees of the Kamehameha Schools/ Bernice Pauahi Bishop Estate (collectively "KS"), acting by and through counsel, will and hereby move this Court for an order dismissing this action or, in the alternative, all claims for relief asserted against KS in Plaintiff's Complaint for Declaratory Relief ("Complaint") and John and Jane Doe's Cross-Claim for Temporary Restraining Order; Preliminary Injunction; and Permanent Injunction; and for Declaratory Relief; and Counter-Claim for Indemnity. This Motion shall be brought for hearing before the Honorable Frank C. Damrell, United States District Court, Eastern District of California, in Sacramento, California, on October 31, 2008, at 10:00 o'clock a.m. DATED: July 9, 2008 ALSTON HUNT FLOYD & ING BINGHAM McCUTCHEN LLP By: /s/ Paul Alston__________________________ PAUL ALSTON CLYDE J. WADSWORTH Attorneys for Defendants and Cross-Claim Defendants KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; J. DOUGLAS ING, NAINOA THOMPSON, DIANE J. PLOTTS, ROBERT K.U. KIHUNE, and CORBETT A.K. KALAMA, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Estate 2 NOTICE OF MOTION AND THE KAMEHAMEHA SCHOOLS DEFENDANTS AND CROSS-CLAIM DEFENDANTS' MOTION TO DISMISS; CASE NO.08-00672 FCD-KJM 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 682394/2 8348/4 THE KAMEHAMEHA SCHOOLS DEFENDANTS AND CROSS-CLAIM DEFENDANTS' MOTION TO DISMISS Defendants and Cross-Claim Defendants KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; J. DOUGLAS ING, NAINOA THOMPSON, DIANE J. PLOTTS, ROBERT K.U. KIHUNE, and CORBETT A.K KALAMA, in their capacities as Trustees of the Kamehameha Schools/ Bernice Pauahi Bishop Estate (collectively the "KS"), by this motion respectfully move this Court for an order dismissing with prejudice the Complaint against KS, as well as the Cross-claim filed by Jane and John Doe. This Motion is brought pursuant to Rule 12(b)(1) and (2) of the Federal Rules of Civil Procedure on the grounds that (1) this Court lacks subject matter jurisdiction over this action because when the parties are properly re-aligned, there is no diversity jurisdiction under 28 U.S.C. 1332; (2) alternatively, this Court lacks personal jurisdiction over KS and all claims asserted against it must be dismissed; and (3) alternatively, even if there are otherwise no jurisdictional defects, the Court should exercise its discretion to decline its jurisdiction and dismiss this action because Plaintiff has no proper basis for seeking relief under the Declaratory Judgment Act (28 U.S.C. 2201). This Motion is based on the memorandum of points and authorities, declarations and exhibits in support of this Motion, the Appendix and attached exhibits, the Request for Judicial Notice and attached exhibits, the Notice of Manual Filing and attached exhibits, the Motion to File Under Seal and attached exhibits to be filed in support of this Motion to Dismiss, the pleadings, records and papers on file in this action, the arguments of counsel and any other matters properly before this Court. DATED: July 9, 2008 ALSTON HUNT FLOYD & ING BINGHAM McCUTCHEN LLP By: /s/ Paul Alston__________________________ PAUL ALSTON CLYDE J. WADSWORTH Attorneys for Defendants and Cross-Defendants KAMEHAMEHA SCHOOLS/BERNICE PAUAHI BISHOP ESTATE; J. DOUGLAS ING, NAINOA THOMPSON, DIANE J. PLOTTS, ROBERT K.U. KIHUNE, and CORBETT A.K. KALAMA, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop Estate 3 NOTICE OF MOTION AND THE KAMEHAMEHA SCHOOLS DEFENDANTS AND CROSS-CLAIM DEFENDANTS' MOTION TO DISMISS; CASE NO.08-00672 FCD-KJM

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