Bautista-Perez et al v. Gonzales et al

Filing 120

STIPULATION AND ORDER resetting briefing schedule and continuing the motion hearing date to 11/23/2009 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 09/16/09. (rbe, COURT STAFF) (Filed on 9/16/2009)

1 2 3 4 5 6 7 8 9 10 Attorneys for Defendants 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 ____________________________________ 14 JOSE BAUTISTA-PEREZ, et al., 15 Plaintiffs, 16 17 18 19 20 21 22 23 24 25 26 27 28 1. v. ERIC H. HOLDER, Jr., Attorney General, and JANET NAPOLITANO, Secretary of Homeland Security, Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) No. C 07-4192 TEH J O I N T STIPULATION TO RESET B R I E F I N G SCHEDULE AND H E A R I N G DATE AND [P R O P O S E D ] ORDER OF COUNSEL: JOSEPH P. RUSSONIELLO United States Attorney JOANN M. SWANSON Assistant United States Attorney Chief, Civil Division ILA C. DEISS, NY SBN 3052909 Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: [phone] FAX: [phone] J. MAX WEINTRAUB Senior Litigation Counsel Office of Immigration Litigation Civil Division TONY WEST Assistant Attorney General JEANNE E. DAVIDSON Director BRIAN A. MIZOGUCHI Senior Trial Counsel ELIZABETH A. SPECK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Washington, D.C. 20530 [phone]; FAX: [phone]

Through their respective counsel, the parties hereby agree and stipulate as follows: In the above matter, the schedule for briefing plaintiffs' motion for summary judgment,

and any cross-motion by defendants, culminating in a hearing scheduled for October 26, 2009, was set by a scheduling order entered on August 31, 2009 (Docket no. 118). 2. On September 11, 2009, defendants' counsel of record began attempting to confer with

plaintiffs' counsel of record with respect to a proposed revision of this schedule. On September 14, 2009, counsel for the parties conferred by telephone. Defendants' counsel advised plaintiffs' counsel that good cause supported the requested revision, and asserted the following reasons for this request: defendants have been engaged in a substantial effort to review and respond to

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

plaintiffs' motion for summary judgment. This case concerns a class action concerning acts of Congress and two agencies (the former Immigration and Naturalization Service "INS"), and the United States Citizenship and Immigration Service ("CIS"), an entity within the Department of Homeland Security ("DHS")). Plaintiffs' motion for summary judgment raises issues about acts that have occurred during a period of approximately 20 years, dating back at least to 1990. Defendants also assert that although they have made diligent efforts to investigate the facts and legal issues raised by plaintiffs' motion, it became clear that additional time is necessary to enable them to present fairly a fully-informed and helpful briefing of the issues. Defendants have found that the task of responding to plaintiffs' motion, including their ability to obtain and review records and interview personnel that they believe are necessary to ascertain the facts, has taken more time than they had hoped, complicated by the time that has elapsed since events in question dating back to 1990, and the number of issues and potential arguments raised by plaintiffs' motion. Further, because this case has significant potential consequences to the United States, defendants' counsel has been informed that, in addition to expected review and coordination of positions that defendants may take within the Department of Justice (Justice) and between Justice and CIS, that the Department of Homeland Security has requested that it review any briefing before it is filed. Defendants' counsel also noted that, before the present schedule was set, when plaintiffs' counsel informed defendants of plaintiffs' motion and conferred regarding the schedule, defendants' counsel indicated that he thought that the present schedule was tight and that he had reservations due to several pre-existing matters that, if they consumed more time than anticipated, could cause defendants to seek to revisit the schedule. Counsel of record for defendant has devoted to this case as much time as is practicable, and the overwhelming majority of his time, including evening and weekend work, to attempt to meet the present schedule. The other pre-existing matters that have unavoidably occupied portions of counsel's time since the August 17, 2009 filing of plaintiffs' motion for summary judgment include, but are not limited to, Bank of Guam v. United States, no. 08-4078 (Fed. Cir.); Bank of America FSB v. United States, no. 95-660C (Fed. Cl.); Suess, et al. v. United States, no. 90-981 (Fed.

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

Cl.), and Toys "R" Us v. United States, no. 07-115 (Ct. Int'l Trade). Moreover, certain unanticipated events arose since the present schedule was set. In order to comply with the court's instructions in the Toys "R" Us case, defendant's counsel expended an unexpected amount of time during the period from August 14, 2009, through the termination of that matter on August 28, 2009, working with plaintiff's counsel in that matter and two agencies to resolve that case. On August 25, 2009, after advising the court that Toys "R" Us is a related case, the plaintiff in Target Corp. v. United States, no. 09-0315 (Ct. Int'l Trade) filed a complaint to which defendant's counsel must respond, another event not expected at the time the current schedule was set. On September 9, 2009, the court in Suess deferred ruling on our motion to dismiss, ordering that plaintiff submit supplemental briefing to be served on defendants by October 9, 2009, and ordering that defendants submit a response brief by November 13, 2009, another task not anticipated at the time the schedule was set. For these reasons, defendants asserted that an enlargement of time is necessary in order to complete their investigation of the facts and law, to coordinate their position with all concerned departments and agencies of the United States, and to prepare a response that will be of the greatest assistance to the Court. 3. The parties counsel conferred and developed a proposed schedule that dealt with

defendants' scheduling issues and plaintiffs' counsel's pre-existing scheduling conflicts triggered by defendants' requested revision, and that targeted the earliest practicable hearing date. 4. Based upon their stipulated proposed schedule revision, the parties jointly

respectfully request that the Court enter an order setting the briefing schedule proposed below, superseding the current scheduling order entered on August 31, 2009 (Docket no. 118), and resetting the hearing scheduled for October 26, 2009, as follows: (1) defendants' opposition to plaintiffs' motion for summary judgment and (2) defendants' cross-motion for summary judgment, if any, due October 2, 2009; (3) plaintiffs' reply to defendant's opposition, and (4) plaintiffs' opposition to defendants' cross-motion, if any, due October 26, 2009;

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

(5) defendants' reply to plaintiffs' opposition to defendants' cross-motion, if any, due November 9, 2009; and (6) hearing of oral argument on summary judgment motions, 23 November 26, 2009 at 10:00 a.m.

IT IS SO STIPULATED. D a te d : September 15, 2009: T O N Y WEST A s s is ta n t Attorney General JEANNE E. DAVIDSON Director /s/ Brian A. Mizoguchi BRIAN A. MIZOGUCHI Senior Trial Counsel C o m m e rc ia l Litigation Branch C iv il Division OF COUNSEL: JOSEPH P. RUSSONIELLO United States Attorney /s/ Ila C. Deiss ILA C. DEISS Assistant United States Attorney Attorneys for Defendants Eric H. Holder, Jr., Attorney General, United States Department of Justice, and Janet Napolitano, Secretary, United States Department of Homeland Security /// Dated: September 15, 2009 GOLDSTEIN, DEMCHAK, BALLER, BORGEN &DARDARIAN /s/ Linda M. Dardarian JONATHAN M. KAUFMAN Attorneys for Plaintiffs

ORDER

UNIT ED

S

*

*

S DISTRICT TE C TA *

PURSUANT TO THE FOREGOING STIPULATION, IT IS SO ORDERED. 09/16/09 Dated: _______________ ___________________________n _____ derson _ Hen elto E. HON. THELTON E. HENDERSON udge Th J United States District Judge

ER

N

F D IS T IC T O R

A

C

LI

FO

R NIA

RT U O

NO

RT

H