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

Filing 70

OBJECTIONS to re 68 Reply to Opposition/Response, Objection to Defendants' Reply Evidence by Plaintiff Trustees Wilmington Trust Company, Wilmington Trust, National Association, U.S. Bank National Association and by Bank of New York Mellon, Bank of New York Mellon Trust Company, N.A.. (Pollock, Bronwyn) (Filed on 12/27/2013)

1
2
3
4

MAYER BROWN LLP
DONALD M. FALK (SBN 150256)
[e-mail]
Two Palo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306-2112
Tel: [phone]
Fax: [phone]

5
6
7
8
9
10

MAYER BROWN LLP
BRONWYN F. POLLOCK (SBN 210912)
[e-mail]
NOAH B. STEINSAPIR (SBN 252715)
[e-mail]
MICHAEL D. SHAPIRO (SBN 271912)
[e-mail]
350 S. Grand Ave., 25th Floor
Los Angeles, CA 90071-1503
Tel: [phone]
Fax: [phone]

11
12
13
14

Attorneys for Plaintiffs
THE BANK OF NEW YORK MELLON (f/k/a The
Bank of New York) and THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A. (f/k/a
The Bank of New York Trust Company, N.A.), as
Trustees for the trusts listed on Exhibit A of the
Second Amended Complaint

15
16

[Additional counsel listed on signature page]

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19
20

THE BANK OF NEW YORK MELLON
(f/k/a The Bank of New York), et al.

21
22
23
24
25
26
27

Plaintiffs,
v.
CITY OF RICHMOND, CALIFORNIA, a
municipality; RICHMOND CITY COUNCIL;
MORTGAGE RESOLUTION PARTNERS
L.L.C., a Delaware limited liability company;
and GORDIAN SWORD LLC, a Delaware
limited liability company,

Case No. 13-cv-3664-CRB
OBJECTION TO DEFENDANTS’ REPLY
EVIDENCE BY PLAINTIFF TRUSTEES
Date:
Time:
Judge:
Courtroom:

January 24, 2014
10:00 a.m.
Hon. Charles R. Breyer
6, 17th Floor

Defendants.

28
OBJECTION TO REPLY EVIDENCE
CASE NO. 13-cv-3664-CRB

OBJECTION TO REPLY EVIDENCE

1
2

Pursuant to Civil Local Rule 7-3(d)(1), the Trustees object to new evidence set forth in connection

3

with Defendants’ Reply in Support of Motion for Rule 11 Sanctions (D.E. #68) (the “Reply”).1 Relying

4

on the accompanying Declaration of Stacey Leyton in Support of Defendants’ Reply in Support of Motion

5

for Rule 11 Sanctions (D.E. #68-1–7), the Reply introduces material not set forth in Defendants’ Motion

6

for Rule 11 Sanctions (D.E. #55) (the “Rule 11 Motion”), concerning the purported time spent and costs

7

associated with litigating Defendants’ motion to dismiss and Rule 11 Motion and the supposed

8

reasonableness of Defendants’ attorneys’ fees.

9

As noted in the Trustees’ Opposition to Motion for Rule 11 Sanctions (D.E. #59), it is well

10

established that presenting new information in a reply brief is improper because it deprives the opposing

11

party an opportunity to respond to that material. See, e.g., Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273

12

n.3 (9th Cir. 1993) (refusing to consider new information because it was “improper[ly]” submitted in a

13

reply brief); BoomerangIt Inc. v. ID Armor Inc., 104 U.S.P.Q.2d 1081, 1085 n.1 (N.D. Cal. 2012) (same);

14

Contratto v. Ethicon, Inc., 227 F.R.D. 304, 308 n.5 (N.D. Cal. 2005) (refusing to consider a declaration

15

because “Defendants’ attempt to introduce new evidence in connection with their reply papers [was]

16

improper”); see also Civ. L.R. 7-3(d)(1).

17

The same result should attach here. Defendants’ tactic of saving this information for their reply

18

brief is precluded by well-settled precedent. The Court should strike from the Reply and the

19

accompanying affidavit new material concerning the purported time spent and costs associated with

20

litigating Defendants’ motion to dismiss and Rule 11 Motion and supposed reasonableness of Defendants’

21

attorneys’ fees, and disregard all such information in deciding Defendants’ motion.

22
23
24
25
26
27

1

Trustees The Bank of New York Mellon, The Bank of New Mellon Trust Company, N.A., U.S.
Bank National Association, Wilmington Trust Company, and Wilmington Trust, National Association are
referred to collectively herein as the “Trustees.” Defendants the City of Richmond, Richmond City
Council, Mortgage Resolution Partners L.L.C., and Gordian Sword LLC are referred to collectively herein
as the “Defendants.”

28
-1-

OBJECTION TO REPLY EVIDENCE
CASE NO. 13-cv-3664-CRB

Respectfully submitted,

1

4

MAYER BROWN LLP
DONALD M. FALK
BRONWYN F. POLLOCK
NOAH B. STEINSAPIR
MICHAEL D. SHAPIRO

5

By:

2

Dated: December 27, 2013

3

/s/ Bronwyn F. Pollock
_____
Bronwyn F. Pollock
Attorneys for Plaintiffs
THE BANK OF NEW YORK MELLON (f/k/a The Bank
of New York) and THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A. (f/k/a The Bank of
New York Trust Company, N.A.), as Trustees for the
Trusts listed on Exhibit A to the Second Amended
Complaint

6
7
8
9
10

Dated: December 27, 2013

11
12
13
14

ALSTON & BIRD LLP
KURT OSENBAUGH (SBN 106132)
[e-mail]
WHITNEY CHELGREN (SBN 285362)
[e-mail]
333 South Hope Street, Sixteenth Floor
Los Angeles, CA 90071
Tel: [phone]
Fax: [phone]

15
By:

/s/ Kurt Osenbaugh
Kurt Osenbaugh
Attorneys for Plaintiffs
WILMINGTON TRUST COMPANY and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustees for the Trusts listed in Exhibit C to the Second
Amended Complaint

16
17
18
19
20
21
22
23
24
25
26
27

Dated: December 27, 2013

JONES DAY
BRIAN D. HERSHMAN (SBN 168175)
[e-mail]
555 South Flower Street, 50th Floor
Los Angeles, CA 90071-2300
Tel: [phone]
Fax: [phone]
JONES DAY
MATTHEW A. MARTEL (pro hac vice)
[e-mail]
JOSEPH B. SCONYERS (pro hac vice)
[e-mail]
100 High Street, 21st Floor
Boston, MA 02110
Telephone: [phone]

28
-2-

OBJECTION TO REPLY EVIDENCE
CASE NO. 13-cv-3664-CRB

1

Facsimile: 617-449-6999

2

By:

3
4

/s/ Brian D. Hershman
Brian D. Hershman
Attorneys for Plaintiff
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for the Trusts listed in Exhibit B to the Second
Amended Complaint

5
6
7
8

SIGNATURE ATTESTATION
I, Bronwyn F. Pollock, attest that the concurrence in the filing of Objection to Reply Evidence has
been obtained from Kurt Osenbaugh and Brian D. Hershman.

9
10
11
12
13

By: /s/ Bronwyn F. Pollock
Bronwyn F. Pollock
Attorneys for Plaintiffs
THE BANK OF NEW YORK MELLON
(f/k/a The Bank of New York) and THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A. (f/k/a The
Bank of New York Trust Company, N.A.), as Trustees

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-

OBJECTION TO REPLY EVIDENCE
CASE NO. 13-cv-3664-CRB