Hibnick v. Google Inc.

Filing 104

Reply Memorandum re 61 MOTION to Approve Consent Judgment Notice of Motion and Memorandum in Support of Motion for Order Granting Final Approval of Class Settlement, Certifying Settlement Class, and Appointing Class Representatives and Class Counsel, 65 MOTION for Attorney Fees Notice of Motion; Class Counsel's Application for Attorneys' Fees and Reimbursement of Expenses filed byJohn Case, Barry Feldman, Lauren Maytin, Mark Neyer, Andranik Souvalian, Katherine C Wagner, Rochelle Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mason, Gary) (Filed on 2/2/2011)

1 James P. Walsh (SB. No. 184620) DAVIS WRIGHT TREMAINE LLP 2 505 Montgomery Street, Suite 800 3 San Francisco, California 94111-3611 Telephone: [phone] Facsimile: [phone] [e-mail] 5 Attorneys for Applicant for Intervention 6 WEST COAST SEAFOOD PROCESSORS ASSOCIATION 7 8 9 10 11 12 13 14 15 16 17 18 19 The West Coast Seafood Processors Association (the Applicant ), seeking to intervene in this v. CARLOS M. GUTIERREZ, Secretary of Commerce; and NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Defendants. NATURAL RESOURCES DEFENSE COUNCIL, INC. and OCEANA, INC., Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Nos. C01-0421 JL [PROPOSED] ANSWER OF WEST COAST SEAFOOD PROCESSORS ASSOCIATION TO PLAINTIFF S [PROPOSED] FOURTH AMENDED COMPLAINT

20 action, files this [Proposed] Answer to Plaintiff s [Proposed] Fourth Amended Complaint ( Amended 21 Complaint), in the event the Court grants Plaintiff s Motion for Leave to Amend Complaint: 22 1. The allegations in paragraph 1 of the Amended Complaint describe the action and no

23 response is required. To the extent a response is required, Applicant denies that any of the final Pacific 24 Groundfish Fishery regulations promulgated in the Federal Register by Federal Defendants on 25 December 29, 2006 are either substantively or procedurally unlawful on any grounds. 26 2. The allegations in paragraph 2 contain legal conclusions as to subject matter jurisdiction

27 to which no response is required. 28
Applicant s [Proposed] Answer to Fourth Amended Complaint- 1 Case No. C01-0421 JL
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3.

The allegations in paragraph 3 contain legal conclusions as to venue to which no response

2 is required. 3 4. The allegations in paragraph 4 contain legal conclusions as to intradistrict assignment to

4 which no response is required. 5 5. Applicant lacks sufficient information and knowledge to form a belief as to the factual

6 allegations in paragraph 5, and therefore denies them. 7 6. Applicant lacks sufficient information and knowledge to form a belief as to the factual

8 allegations in paragraph 6, and therefore denies them. 9 10 11 12 13 7. 8. 9. 10. 11. Applicant denies the allegations in paragraph 7. Applicant admits the allegations in paragraph 8. Applicant admits the allegations in paragraph 9. Applicant admits the allegations in paragraph 10. The allegations in paragraph 11 purport to describe provisions of a federal statute known

14 as the Sustainable Fisheries Act, which contained certain amendments to the Magnuson-Stevens 15 Fishery Conservation and Management Act (the Magnuson-Stevens Act ). These statutory provisions 16 speak for themselves, and no response is required. Recently, Congress enacted H.R. 5946, the 17 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act, and President George 18 W. Bush signed the legislation into law on January 12, 2007. None of the changes of law in H.R. 5946 19 apply to the final regulations that are the subject of this lawsuit, given that the regulations were adopted 20 prior to enactment of H.R. 5946. 21 22 12. 13. Applicant admits the allegations in paragraph 12. Applicant denies the allegations in paragraph 13. Marine fish stocks vary in size over

23 time due to natural variability in ocean conditions. 24 14. The allegations in paragraph 14 purport to describe provisions of the Magnuson-Stevens

25 Act. These statutory provisions speak for themselves, and no response is required. 26 15. The allegations in paragraph 15 purport to describe provisions of the Magnuson-Stevens

27 Act. These statutory provisions speak for themselves, and no response is required. 28
Applicant s [Proposed] Answer to Fourth Amended Complaint- 2 Case No. C01-0421 JL
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16.

Applicant admits that three of the 84 species of Pacific Groundfish were declared

2 overfished in 1999. The remaining allegations purport to describe provisions of the Magnuson-Stevens 3 Act, which speak for themselves, and no response is required. 4 17. Applicant admits that the current stock status of bocaccio and Pacific ocean perch meets

5 the technical definition of overfished under the Magnuson-Stevens Act, and that lingcod does not. 6 Applicant avers that neither bocaccio nor Pacific ocean perch have ever been listed as either threatened 7 or endangered under the Endangered Species Act, 16 U.S.C. §§ 1531-1544. 8 18. Applicant lacks sufficient information or knowledge to form a belief as to the factual

9 allegations in paragraph 18, and therefore denies them. Applicant avers that the Magnuson-Stevens Act 10 provides for judicial review of regulations and actions taken by the Secretary of Commerce to 11 implement a fishery management plan, or amendments thereto. 16 U.S.C. § 1855(f). Applicant avers 12 that fishery management plans are not subject to judicial review, except to the extent such fishery 13 management plans, including rebuilding plans, are implemented through final regulations and/or 14 actions taken by the Secretary of Commerce. Moreover, Applicant avers that only such regulations 15 and/or actions that are the subject of a lawsuit, filed within 30 days after notice of such final regulations 16 and/or actions is published in the Federal Register, are subject to judicial challenge. Applicant further 17 avers that all the Pacific Groundfish regulations published on December 29, 2006 were subject to notice 18 and opportunity for comment by the public, including by Plaintiff, and that Plaintiff did in fact provide 19 extensive comments on the proposed regulations. 20 19. Applicant lacks sufficient information and knowledge to form a belief as to the factual

21 allegations in paragraph 19, and therefore denies them. 22 23 20. 21. Applicant admits the allegations in paragraph 20. Applicant lacks sufficient information and knowledge to form a belief as to the factual

24 allegations in paragraph 21, and therefore denies them. 25 22. Applicant lacks sufficient information and knowledge to form a belief as to the factual

26 allegations in paragraph 22, and therefore denies them. 27 28
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23.

The allegations in paragraph 23 purport to describe the content of material published in

2 the Federal Register by Federal Defendants. Such material speaks for itself, and no response is 3 required. 4 24. Applicant lacks sufficient information and knowledge to form a belief as to the factual

5 allegations in paragraph 24, and therefore denies them. Applicant denies that Federal Defendants failed 6 to comply with the National Environmental Policy Act in their consideration of the final regulations 7 that are the subject of this lawsuit. 8 25. Applicant admits that the current stock status of canary rockfish and cowcod meets the

9 technical definition of overfished under the Magnuson-Stevens Act. Applicant avers that neither 10 canary rockfish nor cowcod have ever been listed as either threatened or endangered under the 11 Endangered Species Act, 16 U.S.C. §§ 1531-1544. 12 26. Applicant admits that the current stock status of darkblotched rockfish, widow rockfish

13 and yelloweye rockfish meets the technical definition of overfished under the Magnuson-Stevens 14 Act. Applicant avers that darkblotched rockfish, widow rockfish, and yelloweye rockfish have never 15 been listed as either threatened or endangered under the Endangered Species Act, 16 U.S.C. §§ 153116 1544. 17 27. Applicant lacks sufficient information and knowledge to form a belief as to the factual

18 allegations in paragraph 27, and therefore denies them. 19 28. Applicant lacks sufficient information and knowledge to form a belief as to the factual

20 allegations in paragraph 28, and therefore denies them. 21 29. Applicant lacks sufficient information and knowledge to form a belief as to the factual

22 allegations in paragraph 29, and therefore denies them. 23 30. The allegations in paragraph 30 purport to describe the content of material published in

24 the Federal Register by Federal Defendants. Such material speaks for itself, and no response is 25 required. 26 31. Applicant lacks sufficient information and knowledge to form a belief as to the factual

27 allegations in paragraph 31, and therefore denies them. 28
Applicant s [Proposed] Answer to Fourth Amended Complaint- 4 Case No. C01-0421 JL
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32.

Applicant lacks sufficient information and knowledge to form a belief as to the factual

2 allegations in paragraph 32, and therefore denies them. 3 33. The allegations in paragraph 33 purport to describe the content of material published in

4 the Federal Register by Federal Defendants. Such material speaks for itself, and no response is 5 required. 6 34. Applicant lacks sufficient information and knowledge to form a belief as to the factual

7 allegations in paragraph 34, and therefore denies them. 8 35. Applicant lacks sufficient information and knowledge to form a belief as to the factual

9 allegations in paragraph 35, and therefore denies them. 10 36. Applicant lacks sufficient information and knowledge to form a belief as to the factual

11 allegations in paragraph 32, and therefore denies them. 12 37. The allegations in paragraph 37 purport to describe the content of material published in

13 the Federal Register by Federal Defendants. Such material speaks for itself, and no response is 14 required. 15 38. Applicant lacks sufficient information and knowledge to form a belief as to the factual

16 allegations in paragraph 38, and therefore denies them. 17 39. Applicant lacks sufficient information and knowledge to form a belief as to the factual

18 allegations in paragraph 39, and therefore denies them. 19 40. Applicant lacks sufficient information and knowledge to form a belief as to the factual

20 allegations in paragraph 40, and therefore denies them. 21 41. The allegations in paragraph 41 purport to describe provisions of the Magnuson-Stevens

22 Act and the meaning of a decision by the Ninth Circuit Court of Appeals. These statutory provisions 23 and the Court s decision speak for themselves, and no response is required. 24 25 26 42. 43. 44. Applicant denies the allegations in paragraph 42. No response to paragraph 43 is required. The allegations in paragraph 44 purport to describe provisions of the Magnuson-Stevens

27 Act. These statutory provisions speak for themselves, and no response is required. 28
Applicant s [Proposed] Answer to Fourth Amended Complaint- 5 Case No. C01-0421 JL
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45.

Applicant lacks sufficient information and knowledge to form a belief as to the factual

2 allegations in paragraph 45, and therefore denies them. 3 46. Applicant lacks sufficient information and knowledge to form a belief as to the factual

4 allegations in paragraph 46, and therefore denies them. 5 6 7 47. 48. 49. Applicant denies the allegations in paragraph 47. No response to paragraph 48 is required. The allegations in paragraph 49 purport to describe provisions of the Magnuson-Stevens

8 Act. These statutory provisions speak for themselves, and no response is required. 9 50. The allegations in paragraph 50 purport to describe provisions of the Magnuson-Stevens

10 Act. These statutory provisions speak for themselves, and no response is required. 11 51. Applicant lacks sufficient information and knowledge to form a belief as to the factual

12 allegations in paragraph 51, and therefore denies them. 13 52. Applicant lacks sufficient information and knowledge to form a belief as to the factual

14 allegations in paragraph 52, and therefore denies them. 15 53. Applicant lacks sufficient information and knowledge to form a belief as to the factual

16 allegations in paragraph 53, and therefore denies them. 17 54. Applicant lacks sufficient information and knowledge to form a belief as to the factual

18 allegations in paragraph 54, and therefore denies them. 19 55. Applicant lacks sufficient information and knowledge to form a belief as to the factual

20 allegations in paragraph 55, and therefore denies them. 21 56. Applicant lacks sufficient information and knowledge to form a belief as to the factual

22 allegations in paragraph 56, and therefore denies them. 23 24 25 57. 58. 59. Applicant denies the allegations in paragraph 57. No response to paragraph 58 is required. The allegations in paragraph 59 purport to describe provisions of the Magnuson-Stevens

26 Act. These statutory provisions speak for themselves, and no response is required 27 60. Applicant lacks sufficient information and knowledge to form a belief as to the factual

28 allegations in paragraph 60, and therefore denies them.
Applicant s [Proposed] Answer to Fourth Amended Complaint- 6 Case No. C01-0421 JL
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61.

Applicant lacks sufficient information and knowledge to form a belief as to the factual

2 allegations in paragraph 61, and therefore denies them. 3 4 5 62. 63. 64. Applicant denies the allegations in paragraph 62. No response to paragraph 63 is required. Applicant lacks sufficient information and knowledge to form a belief as to the factual

6 allegations in paragraph 64, and therefore denies them. 7 65. Applicant lacks sufficient information and knowledge to form a belief as to the factual

8 allegations in paragraph 65, and therefore denies them. 9 66. Applicant lacks sufficient information and knowledge to form a belief as to the factual

10 allegations in paragraph 66, and therefore denies them. 11 67. Applicant lacks sufficient information and knowledge to form a belief as to the factual

12 allegations in paragraph 67, and therefore denies them. 13 14 15 16 68. 69. 70. 71. Applicant denies the allegations in paragraph 68. No response to paragraph 69 is required. Applicant denies the allegations in paragraph 70. Applicant admits that the current stock status of yelloweye rockfish meets the technical

17 definition of overfished under the Magnuson-Stevens Act. Applicant denies the remaining 18 allegations in paragraph 71. 19 20 21 22 72. 73. 74. 75. Applicant denies the allegations in paragraph 72. Applicant denies the allegations in paragraph 73. No response to paragraph 74 is required. The allegations in paragraph 77 purport to describe provisions of the Magnuson-Stevens

23 Act and the meaning of a decision by the Ninth Circuit Court of Appeals. These statutory provisions 24 and the Court s decision speak for themselves, and no response is required. 25 26 76. 77. Applicant denies the allegations in paragraph 76. The allegations in the first sentence of paragraph 77 purport to describe provisions of the

27 Magnuson-Stevens Act. These statutory provisions speak for themselves, and no response is required. 28 Applicant denies the remaining allegations in paragraph 77.
Applicant s [Proposed] Answer to Fourth Amended Complaint- 7 Case No. C01-0421 JL
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78.

Applicant lacks sufficient information and knowledge to form a belief as to the factual

2 allegations in paragraph 78, and therefore denies them. 3 4 5 79. Applicant denies the allegations in paragraph 79. Prayer for Relief The remainder of Plaintiff s Amended Complaint contains a prayer for relief. Applicant denies

6 that Plaintiff is entitled to any relief. 7 8 General Denial Applicant denies each and every allegation in Plaintiff s Amended Complaint, whether express

9 or implied, that Applicant has not previously and expressly admitted in this Answer. 10 11 12 1. 2. Affirmative Defenses Plaintiff fails to state a claim upon which relief can be granted. Plaintiff s claims are untimely filed and fail to meet the time for filing a judicial

13 challenge under the judicial review provisions of the Magnuson-Stevens Act. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Applicant s [Proposed] Answer to Fourth Amended Complaint- 8 Case No. C01-0421 JL
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3. 4. 5. 6.

Plaintiff s claims are not ripe. Plaintiff s claims are moot. The Court lacks subject matter jurisdiction over Plaintiff s claims. Plaintiff lacks standing to bring the claims in the Amended Complaint.

DATED this 16th day of January, 2007. Respectfully submitted,

/s James P. Walsh__________________ James P. Walsh (CSB No. 184620) Attorneys for WEST COAST SEAFOOD PROCESSORS ASSOCIATION Applicant for Intervention