Bank of New York Mellon v. City of Richmond, California et al

Filing 29

Ex Parte Application re 28 MOTION to Dismiss for Lack of Jurisdiction EX PARTE MOTION TO SHORTEN TIME AND FOREGO HEARING filed by City of Richmond, California, Gordian Sword LLC, Mortgage Resolution Partners L.L.C., Richmond City Council. (Attachments: # 1 Declaration Declaration of Eric P. Brown in Support of Ex Parte, # 2 Exhibit Exhibit A to the Declaration of Eric P. Brown, # 3 Exhibit Exhibit B to the Declaration of Eric P. Brown, # 4 Exhibit Exhibit C to the Declaration of Eric P. Brown, # 5 Exhibit Exhibit D to the Declaration of Eric P. Brown, # 6 Exhibit Exhibit E to the Declaration of Eric P. Brown, # 7 Exhibit Exhibit F to the Declaration of Eric P. Brown, # 8 Exhibit Exhibit G to the Declaration of Eric P. Brown, # 9 Exhibit Exhibit H to the Declaration of Eric P. Brown, # 10 Proposed Order Proposed Order)(Leyton, Stacey) (Filed on 9/20/2013)

1 STEPHEN P. BERZON (SBN 46540)
SCOTT A. KRONLAND (SBN 171693)
2 STACEY M. LEYTON (SBN 203827)
ERIC P. BROWN (SBN 284245)
3
Altshuler Berzon LLP
4 177 Post Street, Suite 300
San Francisco, CA 94108
5 Tel: [phone]
Fax: [phone]
6 E-mail: [e-mail]
Attorneys for Defendants City of Richmond, Richmond
7
City Council, Mortgage Resolution Partners LLC and
8 Gordian Sword LLC
WILLIAM A. FALIK (SBN 53499)
9 BRUCE REED GOODMILLER (SBN 121491)
City Attorney
100 Tunnel Rd
10 CARLOS A. PRIVAT (SBN 197534)
Berkeley, CA 94705
Assistant City Attorney
Tel: [phone]
11 CITY OF RICHMOND
Fax: [phone]
450 Civic Center Plaza
E-mail: [e-mail]
12
Richmond, CA 94804
Attorney for Defendants
Mortgage Resolution Partners LLC
13 Telephone: [phone]
Facsimile: [phone]
and Gordian Sword LLC
14 E-mail: [e-mail]
Attorneys for Defendants City of Richmond and
15
Richmond City Council
16
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
17
18 THE BANK OF NEW YORK MELLON (f/k/a The
Bank of New York) and THE BANK OF NEW
19 YORK MELLON TRUST COMPANY, N.A. (f/k/a
The Bank of New York Trust Company, N.A.), as
20 Trustees; U.S. BANK NATIONAL ASSOCIATION,
21 as Trustee; and WILMINGTON TRUST COMPANY
and WILMINGTON TRUST, NATIONAL
22 ASSOCIATION, as Trustees,
23
24

Case No. CV-13-3664-CRB
DECLARATION OF ERIC P. BROWN
IN SUPPORT OF EX PARTE MOTION
AND MOTION TO DISMISS
Honorable Charles R. Breyer

Plaintiffs,
v.

CITY OF RICHMOND, CALIFORNIA, a
25 municipality; RICHMOND CITY COUNCIL;
26 MORTGAGE RESOLUTION PARTNERS LLC, a
Delaware limited liability company; and
27 GORDIAN SWORD LLC, a Delaware limited
liability company,
28
Defendants.
DECLARATION OF ERIC P. BROWN IN SUPPORT OF EX PARTE MOTION AND MOTION TO DISMISS
Case No. CV-13-3664-CRB

1

DECLARATION OF ERIC P. BROWN IN SUPPORT OF

2

EX PARTE MOTION AND MOTION TO DISMISS

3 I, Eric P. Brown, hereby declare as follows:
4

1.

I am an attorney at Altshuler Berzon LLP and represent Defendants in this case. I

5 also represent the defendants in the related case Wells Fargo Bank v. City of Richmond, Case No.
6 CV-13-3663-CRB.
7

2.

The defendants in Wells Fargo Bank filed a motion to dismiss on August 22, 2013

8 (Dkt. 38). A true and correct copy of that motion and memorandum in support is attached hereto as
9 Exhibit A. A true and correct copy of the reply in support of that motion, filed on September 4,
10 2013 (Dkt. 54), is attached hereto as Exhibit B. And a true and correct copy of a supplemental
11 memorandum regarding that motion, which reports the results of the September 10, 2013
12 Richmond City Council meeting and was filed on September 11, 2013 (Dkt. 68), is attached hereto
13 as Exhibit C.
14

3.

This Court held a hearing on the motion to dismiss in Wells Fargo on September 12,

15 2013. A true and correct copy of the transcript of that hearing is attached hereto as Exhibit D.
16

4.

Following the hearing, I sent an electronic mail message to counsel for Plaintiffs in

17 this case, explaining that this Court determined that the Wells Fargo case was unripe and stated
18 that a ruling on the motion to dismiss would be issued on September 16, 2013. My message
19 explained that Defendants’ responsive pleading in this case was due on September 16 as well, and
20 asked Plaintiffs to agree that if the Court dismissed the Wells Fargo case they would voluntarily
21 dismiss the complaint in the instant case within 24 hours so that it would be unnecessary for
22 Defendants to file a motion to dismiss.
23

5.

Plaintiffs’ counsel told me over the phone that they would not agree to dismiss the

24 case because they would need to evaluate any ruling by the Court, but they subsequently agreed to
25 an extension of time for Defendants’ responsive pleading. The time for Defendants’ responsive
26 pleading was extended by mutual stipulation on September 16, 2013. (Dkt. 23).
27

6.

On September 13, 2013, Plaintiffs and Defendants filed supplemental briefs in Wells

28 Fargo as requested by the Court. (Dkt. 75, 76). True and correct copies of those briefs are
1
DECLARATION OF ERIC P. BROWN IN SUPPORT OF EX PARTE MOTION AND MOTION TO DISMISS
Case No. CV-13-3664-CRB

1 attached hereto as Exhibits E and F.
2

7.

On September 16, 2013, this Court issued a written order dismissing the Wells

3 Fargo case as unripe and therefore lacking subject matter jurisdiction. (Dkt. 78). A true and
4 correct copy of that order is attached hereto as Exhibit G. A true and correct copy of the Court’s
5 judgment, (Dkt. 79), issued the same day, is attached hereto as Exhibit H.
6

8.

After the Court issued its ruling dismissing the Wells Fargo case as unripe, I again

7 contacted Plaintiffs’ counsel by electronic mail. My message explained that the grounds for the
8 dismissal presented no distinction from this case and asked that Plaintiffs agree to voluntary
9 dismissal by Tuesday to avoid the need to file an unnecessary motion to dismiss and thereby waste
10 the resources of the parties and the Court. Plaintiffs’ counsel responded that they would confer
11 with their clients and respond later in the week.
12

9.

In response, I sent an electronic mail message reiterating that there was no non-

13 frivolous basis to distinguish the Article III issues in this case from Wells Fargo and no legitimate
14 purpose to keeping this case on file, so the only conceivable purpose in doing so would be to chill
15 the political process. Therefore, I explained, Defendants intended to move to dismiss by the end of
16 this week and to request an order shortening time on the briefing schedule, and needed to know by
17 Wednesday whether Plaintiffs would voluntarily withdraw the complaint, rendering preparation of
18 a motion to dismiss unnecessary. Plaintiffs did not respond to this message.
19

10.

On the morning of Thursday, September 19, 2013, I sent another electronic mail

20 message to Plaintiffs’ counsel stating that, as we had not heard confirmation that Plaintiffs would
21 voluntarily withdraw their complaint, we were preparing a motion to dismiss and application to
22 shorten time to be filed Friday, September 20, 2013. I set forth the proposed schedule (opposition
23 due Wednesday, September 25, and reply due Friday, September 27) and informed Plaintiffs that
24 Defendants would ask the Court to forego a hearing and rule on the papers, and asked for
25 Plaintiffs’ position on these requests by Friday at 12 p.m.
26

11.

On Friday, September 20, 2013, Plaintiffs responded that they will not voluntarily

27 dismiss their Complaint and that they oppose Defendants’ motion for an expedited briefing
28 schedule and Defendants’ request that the Court forego oral argument and rule on the papers.
2
DECLARATION OF ERIC P. BROWN IN SUPPORT OF EX PARTE MOTION AND MOTION TO DISMISS
Case No. CV-13-3664-CRB

1 Plaintiffs’ response does not identify any reason why the ripeness analysis in this case would be
2 any different from that in Wells Fargo.
3 Dated: September 20, 2013
4
5
6
7
8

Respectfully submitted,
/s/ Eric P. Brown
Eric P. Brown
Stephen P. Berzon
Scott A. Kronland
Stacey M. Leyton
Eric P. Brown
Altshuler Berzon LLP

9
10
11

Attorneys for Defendants
City of Richmond and
Mortgage Resolution Partners LLC

13

Bruce Reed Goodmiller
Carlos A. Privat
City of Richmond

14

Attorneys for Defendant City of Richmond

15

William A. Falik

12

16
17

Attorney for Defendant
Mortgage Resolution Partners LLC

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DECLARATION OF ERIC P. BROWN IN SUPPORT OF EX PARTE MOTION AND MOTION TO DISMISS
Case No. CV-13-3664-CRB