Ou-Young v. Vasquez et al

Filing 22

ORDER by Judge Lucy H. Koh finding as moot 17 Motion ; granting 21 Motion to Continue (lhklc2, COURT STAFF) (Filed on 8/14/2012)

Case5:12-cv-02789-LHK Document21 Filed08/10/12 Page1 of 4

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MELINDA HAAG (CSBN 132612)
United States Attorney
JOANN M. SWANSON (CSBN 88143)
Chief, Civil Division
JAMES A. SCHARF (CSBN 152171)
Assistant United States Attorney

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150 Almaden Boulevard, Suite 900
San Jose, CA 95113
Telephone: [phone]
Facsimile: [phone]
Attorneys for United States of America and
United States Postmaster General Patrick R. Donahoe

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KUANG-BAO P. OU-YOUNG,
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Plaintiff,
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v.
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ALEJANDRO B. VASQUEZ, in his official )
capacity; et al.
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Defendants.
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No. CV 12-02789 LHK
ADMINISTRATIVE MOTION TO
CONTINUE CASE MANAGEMENT
CONFERENCE FROM OCTOBER 17,
2012, TO NOVEMBER 15, 2012

PLEASE TAKE NOTICE that, pursuant to Civil L. R. 7-11, the United States of America

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and United States Postmaster General Patrick R. Donahoe1 hereby move the Court for an order

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continuing the October 17, 2012 Case Management Conference to November 15, 2012, or any

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date thereafter, to be held, if necessary, following the hearing on the pending motion to dismiss

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Plaintiff has not yet properly served the individual defendants named in Case No. C 1202789 in accordance with Federal Rules of Civil Procedure 4(c)(2) and 4(i)(3), which require
personal service by an adult who is not a party. To the extent plaintiff is pursuing tort claims
against federal employees acting in their official capacities, the United States of America is the
only proper defendant. 28 U.S.C. § 2679(b)(1). To the extent plaintiff is pursuing employment
discrimination claims, United States Postmaster General Patrick R. Donahoe, as head of the
agency which employed plaintiff, is the only proper defendant. 42 U.S.C.A. § 2000e-16.

Administrative Motion to Continue CMC
CV 12-02789 LHK

Case5:12-cv-02789-LHK Document21 Filed08/10/12 Page2 of 4

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filed August 9, 2012, Document 20, which is set for hearing on November 15, 2012.
By way of background, plaintiff filed this action on May 31, 2012. Plaintiff declined to

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proceed before a Magistrate Judge and this case was re-assigned to Your Honor. On July 17,

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2012, in response to plaintiff’s administrative motion, moving parties advised the Court that they

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intended to file a motion to dismiss on August 10, 2012 and requested the Court to schedule a

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Case Management Conference for October 3, 2012, or any date thereafter, so that the Case

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Management Conference occurred after the hearing on the motion to dismiss. On August 9,

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2012, the moving parties filed their motion to dismiss (Document 20). As per Your Honor’s

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Courtroom Deputy, the first available hearing date was November 15, 2012, and the moving

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parties noticed the hearing on the motion to dismiss for that date. Also on August 9, 2012, after

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filing the motion to dismiss, counsel for the moving parties called plaintiff on the telephone and

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left a voice-mail message for plaintiff requesting plaintiff to stipulate to the administrative relief

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requested herein. As of this filing, plaintiff has not responded to that request.2

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As defendant’s pending motion to dismiss should be dispositive, the moving parties

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request that the Case Management Conference be continued until November 15, 2012, or any

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date thereafter, in order to conserve time and resources.

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Dated: August 10, 2012

Respectfully submitted,
MELINDA HAAG
United States Attorney

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___________/S/____________
James A. Scharf
Assistant United States Attorney

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I declare under penalty of perjury that the background facts stated in this administrative
motion are true and correct.

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Administrative Motion to Continue CMC
CV 12-02789 LHK

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Case5:12-cv-02789-LHK Document21 Filed08/10/12 Page3 of 4

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[PROPOSED] ORDER
Good cause appearing, the October 17, 2012, Case Management Conference is continued

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to November 15, 2012, to be held, if necessary, immediately following the hearing on the

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pending motion to dismiss. The parties shall file their Case Management Conference
Statement(s) on or before November 8, 2012. Plaintiff's motion to change time is DENIED
as moot. See ECF No. 17.

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August 14
DATED: ____________________, 2012
Hon. Lucy H. Koh
United States District Court Judge

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Administrative Motion to Continue CMC
CV 12-02789 LHK

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