Clevenger v. Dresser et al

Filing 30

ORDER SETTING HEARING ON 24 MOTION TO CLARIFY RECORD, 25 CROSS-MOTION FOR DISCOVERY, AND 18 MOTION TO DISMISS (granting in part 26 Motion to Shorten Time). Signed by Judge Alsup on 6/19/2017. Replies due by 6/23/2017. Motion Hearing set for 7/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (whalc2, COURT STAFF) (Filed on 6/19/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 TY CLEVENGER, 11 For the Northern District of California United States District Court 10 12 13 14 Plaintiff, ORDER SETTING HEARING ON MOTION TO CLARIFY RECORD, CROSS-MOTION FOR DISCOVERY, AND MOTION TO DISMISS v. GREGORY P. DRESSER, et al., Defendants. / 15 16 No. C 17-02798 WHA At the hearing on June 1 on plaintiff Ty Clevenger’s motion for a temporary restraining 17 order and preliminary injunction, Attorney Suzanne Grandt for defendant State Bar of 18 California had this exchange with the undersigned judge (Dkt. No. 23 at 18:16–20:17): 19 20 Ms. Grandt: Any argument [plaintiff] is making [here] he can make in state bar court. . . . 21 The Court: 22 23 Ms. Grandt: Can he subpoena witnesses? Yes. He can do that. He can bring all these arguments in state bar court. There is no reason to be in federal court — 24 The Court: He could subpoena in the state bar court all these people and find out if the blog post had anything to do with it? 25 26 Ms. Grandt: Yes. And he can do that in state bar court if he wants to. . . . 27 The Court: Wait. I want to make — Ms. Grandt, I want to make it very clear. 28 Can he subpoena witnesses at the state bar? 1 Ms. Grandt: Yes. 2 3 4 5 The Court: You’re telling me that in the state bar court, he will be allowed to subpoena Mr. Dresser and all the other people that he wants to try to show that the whole thing is cooked up in retaliation for the First Amendment blog posts? Ms. Grandt: Correct. And there is case law that says his a — all his arguments are — he can bring up in state bar court. . . . 6 7 The Court: He can make those arguments, and some judge is going to rule on it? 8 Ms. Grandt: Correct. “that plaintiff will be able to take all the discovery necessary or that he wishes [and] will have a 11 For the Northern District of California In short, the undersigned judge asked very specifically about Attorney Grandt’s representation 10 United States District Court 9 fair opportunity in the state bar court to subpoena appropriate people to show that he’s being 12 retaliated against” (id. at 22:12–22:17), and relied on that representation as the main basis for 13 denying plaintiff’s motion at the time. 14 A week later on June 8, Attorney Robert Retana for the State Bar wrote a letter to 15 plaintiff taking the position that “Ms. Grandt’s statements regarding [his] ability to raise [his] 16 claims in State Bar Court and take discovery are accurate” (Dkt. No. 25-4 at 1). That letter, 17 however, admitted that, under Section 6049.1 of the California Business and Professions Code, 18 the proceedings against plaintiff would be “limited to certain specified issues,” and moreover, 19 that he would have “a full and fair opportunity” only to “present [his] arguments for why [he is] 20 entitled to discovery before the State Bar Court” (id. at 2). The letter concluded, “The 21 California Supreme Court presents an adequate forum for consideration of your constitutional 22 law claims should they be rejected by the State Bar Court” (id. at 3). 23 The next day, defendants filed a motion “to clarify the record regarding State Bar rules 24 and procedures” because Attorney Grandt “was not sufficiently clear in her representations” to 25 the undersigned judge (Dkt. No. 24 at 1). That motion “clarified” that, “if Plaintiff believes he 26 is entitled to discovery, he must request it from State Bar Court. If State Bar Court denies his 27 request, he must appeal to the California Supreme Court” (id. at 3). 28 2 1 The Court is troubled by the inaccuracies in Attorney Grandt’s statements at the last 2 hearing in this action, and by the apparently limiting effect of Section 6049.1 on plaintiff’s 3 ability to litigate the First Amendment issues he claims are inherent in the proceedings currently 4 underway against him. The Court wants to call counsel back for further hearing on these and 5 other pending matters. 6 Accordingly, this order treats plaintiff’s pending motion for discovery (Dkt. No. 25) as a 7 cross-motion and response to defendants’ motion to clarify the record, and VACATES the 8 briefing schedule for the former. Defendants may submit a reply brief supporting their motion 9 to clarify the record and addressing plaintiff’s cross-motion for discovery by JUNE 23 AT NOON. Plaintiff may submit a sur-reply by JUNE 30 AT NOON. A hearing on both the motion and the 11 For the Northern District of California United States District Court 10 cross-motion is set for JULY 20 AT 8:00 A.M. The hearing on defendants’ pending motion to 12 dismiss this action is also advanced from July 27 to JULY 20 AT 8:00 A.M. 13 The Court is aware of plaintiff’s request that defendants or defense counsel pay his 14 travel expenses to attend the hearing on his cross-motion (Dkt. No. 25 at 6 n.3) and DEFERS 15 ruling on this request until after the hearing, at which time reimbursement for such expenses 16 may be considered as a possible sanction for Ms. Grandt having made inaccurate statements 17 before the undersigned judge in the first place. 18 Finally, the undersigned judge also notes that Attorney Gregory Dresser, who is named 19 as a defendant in this action, practiced with the undersigned judge at Morrison & Foerster in the 20 1990s. If either side wishes to move to disqualify the undersigned judge on this basis, such 21 motion must be filed prior to the upcoming hearing date on July 20. 22 Except to the extent stated herein, plaintiff’s motion to shorten time (Dkt. No. 26) is 23 DENIED. To better manage the crossfire of motions and miscellaneous filings in this action, no 24 further substantive motions may be filed herein without the Court’s advance permission. Any 25 party that wants to file a motion shall submit a précis not to exceed THREE PAGES in length (12- 26 point font, double-spaced, with no footnotes or attachments) summarizing the key arguments 27 from and relief sought by the proposed motion. The opposing side will then have 48 HOURS to 28 submit a response also not to exceed THREE PAGES in length (12-point font, double-spaced, 3 1 with no footnotes or attachments). The Court will then decide whether or not to grant 2 permission to file the proposed motion. 3 4 IT IS SO ORDERED. 5 6 Dated: June 19, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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