Almy et al v. United States Department of Defense et al

Filing 28

RESPONSE (re 25 MOTION to Continue the Initial Case Management Conference ) filed byMichael D. Almy, Jason D. Knight, Anthony J. Loverde. (Woodmansee, Mark) (Filed on 3/15/2011)

Almy et al v. United States Department of Defense et al

Doc. 28

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M. ANDREW WOODMANSEE (CA SBN 201780) [e-mail] STEPHANIE L. FONG (CA SBN 240836) [e-mail] KIMBERLY R. GOSLING (CA SBN 247803) [e-mail] JESSICA A. ROBERTS (CA SBN 265570) [e-mail] MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: [phone] Facsimile: 858.720.5125 AARON D. TAX (DC SBN 501597) [e-mail] JOHN M. GOODMAN (DC SBN 383147) [e-mail] SERVICEMEMBERS LEGAL DEFENSE NETWORK P. O. Box 65301 Washington, DC 20035-5301 Telephone: [phone] Facsimile: 202.797.1635 Attorneys for Plaintiffs MICHAEL D. ALMY, JASON D. KNIGHT, AND ANTHONY J. LOVERDE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MICHAEL ALMY, JASON KNIGHT, and ANTHONY LOVERDE, Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE; ROBERT M. GATES, Secretary of Defense; DEPARTMENT OF THE AIR FORCE; MICHAEL B. DONLEY, Secretary, Department of the Air Force; DEPARTMENT OF THE NAVY; and RAY MABUS, Secretary, Department of the Navy, Defendants. Case No. cv 10-5627 (RS) PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION REQUESTING A CONTINUANCE OF THE INITIAL CASE MANAGEMENT CONFERENCE Courtroom 3 - 17th Floor Judge: Hon. Richard Seeborg

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION REQUESTING A CONTINUANCE OF THE INITIAL CASE MANAGEMENT CONFERENCE sd-550029
Dockets.Justia.com

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Plaintiffs Michael D. Almy, Anthony J. Loverde, and Jason D. Knight (collectively, "Plaintiffs") respectfully oppose Defendants' Administrative Motion Requesting a Continuance of the Initial Case Management Conference. The sole basis for Defendants' request is 28 U.S.C. § 1292(d)(4)(B), which stays further proceedings "[w]hen a motion to transfer an action to the...Court of Federal Claims is filed in [the] district court[.]" 28 U.S.C. § 1292(d)(4)(B). Plaintiffs do not dispute that 28 U.S.C. § 1292(d)(4)(B) currently applies to this case, as Defendants have filed a motion to transfer this action to the Court of Federal Claims. (See ECF No. 19.) However, Plaintiffs intend to seek leave of Court to file a First Amended Complaint which will explicitly limit the requested relief to reinstatement on active duty service in the military. See Consol. Edison Co. of New York v. United States, No. 98 Civ. 4155 (WK), 1999 U.S. Dist. LEXIS 18561, at *3 (S.D.N.Y. Nov. 29, 1999) (granting motion for leave to amend complaint where statutory stay was in place under 12 U.S.C. § 1292(d)(4)(B)). Plaintiffs intend to file their motion on March 16, 2011. The motion will be heard on the same day (May 5, 2011) as Defendants' motion to transfer. The contemplated amendments would remove entirely the basis for Defendants' motion to transfer, thus rendering the motion moot and terminating the statutory stay. This case then would be free to proceed. In light of the contemplated amended pleading and related case management issues, the March 24, 2011 case management conference still serves an important purpose. Plaintiffs therefore oppose any continuance of the case management conference.

Dated: March 15, 2011

MORRISON & FOERSTER LLP By: /s/ M. Andrew Woodmansee M. ANDREW WOODMANSEE [e-mail] Attorneys for Plaintiffs MICHAEL ALMY, JASON KNIGHT, AND ANTHONY LOVERDE

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION REQUESTING A CONTINUANCE OF THE INITIAL CASE MANAGEMENT CONFERENCE sd-550029

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CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service, are being served this 15th day of March, 2011, with a copy of this document via the Court's CM/ECF system.

/s/ M. Andrew Woodmansee M. Andrew Woodmansee

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION REQUESTING A CONTINUANCE OF THE INITIAL CASE MANAGEMENT CONFERENCE sd-550029

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