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

Filing 57

Ex Parte Application TO CONTINUE HEARING AND REPLY BRIEF ON DEFENDANTS' MOTION FOR RULE 11 SANCTIONS, MOTION for Extension of Time to File Response/Reply , MOTION to Continue filed by City of Richmond, California, Gordian Sword LLC, Mortgage Resolution Partners L.L.C., Richmond City Council. (Attachments: # 1 Declaration of Eric Brown, # 2 Proposed Order)(Leyton, Stacey) (Filed on 11/18/2013)

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]
E-mail: [e-mail]
12 450 Civic Center Plaza
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
EX PARTE MOTION TO CONTINUE
HEARING AND REPLY BRIEF ON
DEFENDANTS’ MOTION FOR RULE
11 SANCTIONS
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.
EX PARTE MOTION TO CONTINUE HEARING AND REPLY
Case No. CV-13-3664-CRB

1

EX PARTE MOTION TO CONTINUE HEARING AND REPLY BRIEF ON

2

DEFENDANTS’ MOTION FOR RULE 11 SANCTIONS

3

Pursuant to Local Rule 6-3, Defendants hereby move this Court for an ex parte order

4 continuing the hearing and reply brief on Defendants’ Motion for Rule 11 Sanctions. Plaintiffs
5 oppose this motion. Declaration of Eric Brown ¶10.
6

This Court dismissed the instant case on November 6, 2013, on the ground that the case was

7 not ripe under Article III. Doc. 53. Defendants have moved for Rule 11 attorneys’ fees sanctions
8 against Plaintiffs in connection with Plaintiffs’ refusal to voluntarily withdraw their complaint after
9 this Court dismissed the related case Wells Fargo v. Richmond, Case No. 13-3663-CRB, on
10 ripeness grounds that presented no basis for distinguishing the instant case. Doc. 55. Defendants
11 noticed the hearing on their motion for December 13, 2013. Id. This Court subsequently
12 continued the hearing sua sponte to December 20, 2013, Doc. 56, and under the current briefing
13 schedule Plaintiffs’ opposition to the motion is due on November 22, 2013, and Defendants’ reply
14 is due on December 2, 2013.
15

For the reasons explained in the accompanying Declaration of Eric Brown, both the new

16 hearing date and the date that the reply brief is currently due pose significant problems for
17 Defendants. Most importantly, all three of the partners at Altshuler Berzon LLP who are counsel
18 in this case are also lead counsel for Respondent SEIU Healthcare Illinois and Indiana in Harris v.
19 Quinn, Dkt. No. 11-681, before the United States Supreme Court. Brown Decl. ¶4. Harris is on a
20 very tight schedule, as the Supreme Court granted certiorari in October and set argument for
21 January 21, 2014. The Petitioners’ brief in Harris is due on November 22, 2013, and the
22 Respondents’ brief, for which Scott Kronland has principal responsibility, but on which Mr.
23 Berzon and Ms. Leyton are also working, is due on December 23, 2013. Id. Substantial work,
24 including preparing, editing, and finalizing the brief and coordinating with several amici, will be
25 required of all three partners during the interim period, and especially in the week before
26 Respondents’ brief is due.
27

In addition, all of the Altshuler Berzon LLP attorneys who are counsel in this case have

28 other commitments (some of which arose after Defendants’ Rule 11 Motion was filed) that will
1
EX PARTE MOTION TO CONTINUE HEARING AND REPLY
Case No. CV-13-3664-CRB

1 adversely affect their ability to meet the current December 2, 2013 due date for the reply brief.
2 Since the motion was filed, Stephen Berzon had to take on responsibility for preparing and arguing
3 United Public Workers, AFSCME, Local 646 v. Abercrombie, Case No. SCWC 12-0000505, before
4 the Hawaii Supreme Court on December 5, 2013, which will require the majority of his time
5 between now and then. Brown Decl. ¶6. Stacey Leyton has a major motion to dismiss due on
6 November 25, 2013, in Salas v. International Union of Operating Engineers, Case No. 12-cv7 10506 (C.D. Cal), a complex breach of fiduciary duty case involving a 119-page complaint (plus
8 over 100 pages of exhibits). Brown Decl. ¶7. Ms. Leyton also will be filing attorneys’ fees
9 petitions in early December in two significant voting rights cases, NEOCH v. Husted, Case No.
10 2:06-cv-00896 (S.D. Ohio), and Service Employees International Union, Local 1 v. Husted, Case
11 No. 12-cv-00562 (S.D. Ohio), successfully litigated in the Sixth Circuit. Brown Decl. ¶7. Eric
12 Brown has a reply brief due in Carrillo v. Schneider Logistics, Case No: 11-cv-8557 (C.D. Cal.), a
13 case involving the mistreatment of warehouse workers on several grounds, on December 2, 2013,
14 the same day that the reply brief on Defendant’s Rule 11 Motion in this case is currently due.
15 Brown Decl. ¶8. Additionally, Mr. Brown has a merits opposition brief in Turtle Bay Exploration
16 Park v. Baker, Case No. 176864 (Cal. Superior Ct.), due on December 4, 2013, as well as a three17 day arbitration before an administrative law judge of the California Public Employees’ Relations
18 Board scheduled for December 16, 17, and 18, which will require a significant amount of time to
19 prepare between now and then. Brown Decl. ¶8. Mr. Brown also has a petition pending before the
20 California Supreme Court in United Teachers Los Angeles v. Superior Court, Court of Appeal Case
21 No. B251693, which will require a reply and substantial work in the coming weeks should it be
22 granted. Brown Decl. ¶8. Finally, the Altshuler Berzon LLP attorneys have family commitments,
23 some involving pre-paid travel, and some involving visits by out of town children and
24 grandchildren over the week of the Thanksgiving holiday, which is the week before the reply brief
25 is currently scheduled to be due.
26

Because there is no urgent reason why Defendants’ Rule 11 motion for attorneys’ fees

27 sanctions must be heard on December 20, a short continuance for both the reply brief and hearing
28 date are appropriate. Defendants therefore respectfully request that their reply be due on December
2
EX PARTE MOTION TO CONTINUE HEARING AND REPLY
Case No. CV-13-3664-CRB

1 20, 2013, and that the hearing date be continued to January 24, 2013. (Defendants also have no
2 objection to continuing Plaintiffs’ opposition brief to December 6, 2013.) Should the January 24,
3 2013 hearing date be unavailable, Defendants ask that the Court set another hearing date in January
4 or February that it deems appropriate.
5

The only two previous time modifications in this case were to allow Defendants to delay

6 responding to the Complaint until after the Court ruled on the pending motion to dismiss in the
7 Wells Fargo case, Doc. 23, and this Court’s recent sua sponte continuance of the hearing on
8 Defendants’ Rule 11 motion, Doc. 56.
9

For the foregoing reasons, the Court should grant Defendants’ motion to continue the

10 hearing date and briefing schedule.
11 Dated: November 18, 2013

Respectfully submitted,

12

/s/ Stacey M. Leyton
Stacey M. Leyton

13
14
15
16
17
18
19
20
21

Stephen P. Berzon
Scott A. Kronland
Stacey M. Leyton
Eric P. Brown
Altshuler Berzon LLP
Attorneys for Defendants
City of Richmond, Richmond City Council,
Mortgage Resolution Partners LLC, and Gordian
Sword LLC
Bruce Reed Goodmiller
Carlos A. Privat
City of Richmond

22
23
24

Attorneys for Defendants City of Richmond and
Richmond City Council
William A. Falik

25
26
27

Attorney for Defendants
Mortgage Resolution Partners LLC and Gordian
Sword LLC

28
3
EX PARTE MOTION TO CONTINUE HEARING AND REPLY
Case No. CV-13-3664-CRB