Vietnam Veterans of America et al v. Central Intelligence Agency et al

Filing 42

ORDER granting re 41 Stipulation Extending Briefing And Hearing Scheduled ON Defendants' Motion to Dismiss First Amended Complaint and Initial Case Management Conference,,, filed by Eric P. Muth, Larry Meirow, United States Department of Defen se, Leon Panetta, United States Department of the Army, Eric H. Holder, Jr., David C. Dufrane, Franklin D. Rochelle, Bruce Price, United States of America, Swords to Plowshares, Vietnam Veterans of America, Robert M. Gates, Wray C. Forrest, Pete Gere n, Veterans Rights Organization Initial Case Management Conference set for 11/12/2009 02:00 PM. Motion Hearing set for 11/12/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. Plaintiffs' opposition due: 10/2/09; Defendants' reply due: 10/23/09.. Signed by Judge Claudia Wilken on 9/14/09. (fj, COURT STAFF) (Filed on 9/15/2009)

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GORDON P. ERSPAMER (CA SBN 83364) [e-mail] TIMOTHY W. BLAKELY (CA SBN 242178) [e-mail] ADRIANO HRVATIN (CA SBN 220909) [e-mail] STACEY M. SPRENKEL (CA SBN 241689) [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Plaintiffs Vietnam Veterans of America; Swords to Plowshares: Veterans Rights Organization; Bruce Price; Franklin D. Rochelle; Larry Meirow; Eric P. Muth; David C. Dufrane; and Wray C. Forrest

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION VIETNAM VETERANS OF AMERICA, et al., Plaintiffs, Case No. CV 09-0037-CW STIPULATION AND [PROPOSED] ORDER EXTENDING BRIEFING AND HEARING SCHEDULE ON DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT AND TO CONTINUE INITIAL CASE MANAGEMENT CONFERENCE

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CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

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Pursuant to Civil Local Rules 6-2 and 7-12, the parties hereby respectfully stipulate, subject to the Court's consideration and approval, as follows: 1. On August 4, 2009, the Court entered a briefing and hearing schedule in

connection with Defendants' anticipated motion to dismiss Plaintiffs' First Amended Complaint (the "Motion") pursuant to a stipulation submitted by the parties. (See Docket No. 33.) The Court's order also continued the Initial Case Management Conference to coincide with the continued hearing date on the Motion. (Id.) 2. 3. On August 14, 2009, Defendants filed their Motion. (See Docket No. 34.) In support of the Motion, Defendants filed four declarations (Docket Nos. 34-1­

34-4) (the "Declarations"), each of which purported to attach documents consisting of "individual Plaintiffs' records . . . submitted for filing under seal because they contain sensitive information that is covered by the Privacy Act." (Defs.' Mem. in Support of Mot. to Dismiss, at 11 n.9.) 4. When Defendants filed their Motion on August 14, 2009, Defendants did not serve

upon Plaintiffs a copy of the documents attached to the Declarations because the documents are covered by the Privacy Act. (See Declaration of Adriano Hrvatin in Support of Stipulation and [Proposed] Order Extending Briefing and Hearing Schedule on Defendants' Motion to Dismiss First Amended Complaint and to Continue Initial Case Management Conference ("Hrvatin Decl."), ¶ 5.) 5. On August 31, 2009, the Court issued an order providing in relevant part that

"Defendants shall provide copies of the documents [attached to the Declarations] to Plaintiffs' attorneys, who may disclose them only to the Plaintiff that they concern." (Docket No. 39.) 6. On August 31, 2009, pursuant to the Court's order, Defendants provided Plaintiffs

with copies of the documents attached to the four Declarations. (Hrvatin Decl. ¶ 7.) 7. Pursuant to the current briefing schedule on Defendants' Motion, Plaintiffs'

opposition is due Friday, September 18, 2009. (See Docket No. 33.) 8. On September 3, 2009, counsel for Plaintiffs and Defendants met and conferred

regarding a proposed extension to the current briefing and hearing schedule on Defendants' Motion. Plaintiffs' counsel identified two issues to support a modification to the current
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schedule. First, Plaintiffs' counsel identified that it had just three days earlier received for the first time documents on which Defendants rely in support of their contention that four of the six Individual Plaintiffs' claims here are barred in their entirety by the statute of limitations. Plaintiffs' counsel needs time to review those documents and confer with the Individual Plaintiffs to which those documents pertain. Second, Plaintiffs' counsel gave notice that Timothy W. Blakely, a senior associate representing Plaintiffs in this matter, recently had emergency surgery for a ruptured appendix. Mr. Blakely has been out of the office and unable to devote any significant amount of time to this matter due to the emergency surgery as well as complications arising from an ongoing infection following the surgery. Defendants' counsel agreed that Defendants would not oppose a request for an extension as to the briefing schedule on Defendants' Motion. (See Hrvatin Decl. ¶ 8.) 9. On September 9, 2009, counsel for Plaintiffs and Defendants conferred further

regarding an extension to the briefing schedule on Defendants' Motion. To address the developments described above, counsel agreed to a modest two-week extension as to the deadlines set forth in the current scheduling order as follows (id. ¶ 9): Plaintiffs' opposition due: Defendants' reply due: Hearing on Defendants' motion: 10. October 2, 2009 October 23, 2009 November 12, 2009, at 2:00 p.m.

Given that the Initial Case Management Conference in this matter has been

scheduled via prior stipulations and orders to coincide with the hearing on Defendants' Motion, the parties agree that the Initial Case Management Conference may be similarly continued to November 12, 2009, at 2:00 p.m. (Id. ¶ 10.) 11. This agreed-upon extension of the briefing and hearing schedule as to Defendants'

Motion, as well as the date for the Initial Case Management Conference, is not submitted for the purpose of delay. It instead attempts to provide a reasonable accommodation of the deadlines impacted by Defendants' recent disclosure of documents as well as the medical condition of an integral member of Plaintiffs' litigation team. (Id. ¶ 11.)

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12.

The proposed extension further promotes judicial efficiency in that it will provide

both parties with a more complete and fair opportunity to establish a record that sufficiently addresses the various arguments raised by Defendants' Motion. In this connection, the parties agree that the brief extension to the schedule will not cause prejudice to either party. (See id. ¶ 12.) IT IS SO STIPULATED. Dated: September 10, 2009 GORDON P. ERSPAMER TIMOTHY W. BLAKELY ADRIANO HRVATIN STACEY M. SPRENKEL MORRISON & FOERSTER LLP

By: ___s/ Gordon P. Erspamer________ Gordon P. Erspamer [[e-mail]] Attorneys for Plaintiffs Dated: September 10, 2009 IAN GERSHENGORN Deputy Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney VINCENT M. GARVEY Deputy Branch Director CAROLINE LEWIS WOLVERTON Trial Attorney UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION FEDERAL PROGRAMS BRANCH

By: __s/ Caroline Lewis Wolverton_____ Caroline Lewis Wolverton [[e-mail]] Attorneys for Defendants

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1 2 3 4 5 6 7 8 IT IS SO ORDERED. 14 Dated: September ____, 2009

[PROPOSED] ORDER On the stipulation of the parties, and good cause appearing:

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