Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius

Filing 25

TRANSCRIPT of Proceedings held on 6/3/2010, before Judge Henry E. Hudson. Court Reporter/Transcriber Krista Liscio, Telephone number 804 916-2296. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2010. Redacted Transcript Deadline set for 8/4/2010. Release of Transcript Restriction set for 9/2/2010.(liscio, krista)

Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius

Doc. 25

1 1 2 3 4 5 6 7 June 3, 2010 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 K R I S T A M. LISCIO, RMR OFFICIAL COURT REPORTER U N I T E D STATES DISTRICT COURT I a n Gershengorn, Esquire Joel McElvain, Esquire J o n a t h a n H. Hambrick, Esquire Erika Myers, Esquire D E P A R T M E N T OF JUSTICE FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, NW R o o m 7332 Washington, DC 20001 Counsel on behalf of Kathleen Sebelius APPEARANCES: D u n c a n Getchell, Jr., Esquire Wesley G. Russell, Jr., Esquire S t e p h e n R. McCullough, Esquire OFFICE OF THE ATTORNEY GENERAL 9 0 0 East Main Street Richmond, Virginia 23219 Counsel on behalf of the Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II C O M P L E T E TRANSCRIPT OF INITIAL PRETRIAL CONFERENCE BEFORE THE HONORABLE HENRY E. HUDSON U N I T E D STATES DISTRICT COURT JUDGE C O M M O N W E A L T H OF VIRGINIA, } EX REL. KENNETH T. CUCCINELLI, II} } v. } } KATHLEEN SEBELIUS } U N I T E D STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA R i c h m o n d Division

Civil Action No. 10-CV-188

Dockets.Justia.com

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not? ( T h e proceeding commenced at 9:17 a.m.) T H E COURT: Good morning. Good morning.

M R . GERSHENGORN: M R . McELVAIN: T H E COURT: c a s e , please. T H E CLERK:

Good morning, Your Honor.

All right, Ms. Pizzini, call our next

Case Number 10 CV 188.

Commonwealth

o f Virginia on behalf of Kenneth T. Cuccinelli, II v K a t h l e e n Sebelius. T h e plaintiff is represented by Mr. Duncan G e t c h e l l , Jr., Mr. Wesley Russell, Jr., and Mr. Stephen McCullough. T h e defendant is represented by Mr. Ian G e r s h e n g o r n , Mr. Joel McElvain, Mr. Jonathan Hambrick, a n d Ms. Erika Meyers. A r e counsel ready to proceed? M R . GETCHELL: The Commonwealth is ready. Yes, sir. We're ready.

M R . GERSHENGORN: T H E COURT:

I've never seen so much brainpower

h e r e for a pretrial conference, but you-all know best h o w much you need. I normally begin by asking whether I don't

o r not there has been settlement discussions. t h i n k I need to ask that question either.

Y o u have had your Rule 26 conference, have you

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

M R . GETCHELL:

3 Your Honor, we had agreed to defer

b e c a u s e we don't think there will be any discovery. T H E COURT: I don't think there will be either.

A n d I doubt there's going to be probably any e v i d e n t i a r y issues in the case from my reading of the p l e a d i n g s and the responses, but the Rules do require t h a t I ask. And I have no objection to the fact that That's probably wise.

y o u have deferred on that.

T h e r e are -- let me ask one other question here b e f o r e I get into setting the matter down. Just for my

s c h e d u l i n g purposes, Mr. Getchell, did you intend to f i l e an amended complaint? Only reason I ask that is

b e c a u s e it will have a material effect on setting the d a t e s for argument on motions and other proceedings. M R . GETCHELL: T H E COURT: No, Your Honor. May I approach?

Yes, sir. We do not intend to file an amended

M R . GETCHELL: complaint.

We're going to file a response on the 7th

i n accordance with the scheduling order. T H E COURT: All right. We do have an issue about whether

M R . GETCHELL:

a n d when to file a motion for summary judgment, which I ' d like to discuss with you. T H E COURT: i n just a minute. I'll take that up. I'll take that up

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M R . GETCHELL: T H E COURT: Right. Very well.

Okay.

T h e r e are two discrete issues raised, two subsets o f issues raised in the motion to dismiss, one being s u b j e c t matter jurisdiction challenged under 12(b)(1), a n d motion to dismiss under 12(b)(6). D o you envision those being argued at the same t i m e , or do you think they need to be severed from a r g u m e n t with subject matter jurisdiction being argued a n d resolved first? M R . GETCHELL: What's your take on that? Your Honor, we think that we have a

v e r y strong showing on the preliminary issues and would l i k e to -T H E COURT: I really don't need to hear that. I'd like to argue them together. That's fine. Yes, that's our preference. I just wanted to

M R . GETCHELL: T H E COURT:

Okay.

M R . GERSHENGORN: T H E COURT: m a k e sure.

That's fine with me.

A l l right, I can hear oral argument on both the 1 2 ( b ) ( 1 ) and 12(b)(6) on the 1st of July if that's good f o r you-all. M R . GETCHELL: That is fine with the Commonwealth

o f Virginia, Your Honor. T H E COURT: Mr. Gershengorn?

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M R . GERSHENGORN: T H E COURT: 9 : 0 0 a.m. That's fine, Your Honor. Then I will set it for

All right.

Each side one hour, is that a sufficient

a m o u n t of time, gentlemen? M R . GETCHELL: T H E COURT: Yes, Your Honor.

Mr. Gershengorn? Yes, sir. One hour per side.

M R . GERSHENGORN: T H E COURT:

All right.

S i n c e there will be no evidence in the case, I d o n ' t know exactly what's going to remain after the m o t i o n to dismiss. It seems to me that necessarily

m o s t of the dispositive issues will be addressed during t h e motion to dismiss. It is conceivable, however,

t h a t with the requirement of only a facial showing of p l a u s i b i l i t y that there could still be some material i s s u e s of fact to be resolved in summary judgment. S o , do you wish me to go ahead and set a date for a r g u m e n t on the summary judgment motion? M R . GETCHELL: T H E COURT: Yes, Your Honor.

Okay. But, Your Honor, I guess our

M R . GERSHENGORN:

s e n s e is that we would prefer to defer briefing, and I g u e s s setting the argument on the summary judgment, u n t i l Your Honor has decided the motion to dismiss. T H E COURT: And I will do that.

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M R . GERSHENGORN: T H E COURT: Okay.

But in this district, because we like

t o move things along, I'll go ahead and set a date for s u m m a r y judgment and you can work out a briefing schedule. I'll let you work that out among yourselves.

J u s t make sure I have enough time to review everything i n time for oral argument. O k a y , I can set it for summary judgment p r o b a b l y -W h e n , Ms. Belcher? M S . BELCHER: T H E COURT: Do we have a date in October?

We have October 18th. I have October the 18th, or I can give What's your pleasure,

y o u a date in November. gentlemen? M R . GETCHELL:

October would be fine. That's fine with us, Your Honor. I'll set it for oral I'll let you gentlemen Make sure I have

M R . GERSHENGORN: T H E COURT:

All right.

a r g u m e n t on October the 18th.

w o r k out your own briefing schedule.

a t least two weeks to review the pleadings before oral a r g u m e n t so I can be fully prepared. M R . GERSHENGORN: T H E COURT: Okay.

All right, there is no need to refer

t h i s to a magistrate judge for settlement conference b e c a u s e the issues, I don't think, are resolvable

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

t h r o u g h negotiation.

You may surprise me.

7 And if you

d o , I'd appreciate it, but I don't think it's going to happen. M S . BELCHER: Your Honor, on the July 1st date, We have

w o u l d it be possible to start at 10:00? pretrials. T H E COURT: Okay.

We'll start at 10:00.

I s that okay with you-all? M R . GETCHELL: T H E COURT: before. O t h e r issues? M R . GETCHELL: Yes, sir, Mr. Getchell. One other issue. I know that there That's fine, Your Honor. 10:00 because I have pretrials

Okay.

a r e people who have expressed interest to appear as amici. If Your Honor is disposed to entertain such

m o t i o n s , should you set a bar date before the oral a r g u m e n t by which they have to file? T H E COURT: c a l l s already. filed. I will do that. We're receiving phone

I have no objection to them being

I read them to the extent that I have time.

D e p e n d s on how many of them come in and what time c o n s t r a i n t s I'm under. M R . GETCHELL: T H E COURT: Sure.

But I welcome all the help and advice

o n these issues that I can possibly get.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sir?

M R . GETCHELL: T H E COURT:

8 What date should they be in by?

I would like to have them at least 14

d a y s before oral argument. M R . GETCHELL: T H E COURT: Thank you.

All right.

M r . Gershengorn, any other issues on your side,

M R . GERSHENGORN:

Yes.

The only question, Your

H o n o r , is whether -- I mean, we will wait and see how i t plays out with the amicus briefs, but whether we m i g h t need additional pages just in case we need to r e s p o n d to some of the amicus briefs that come in, but I can address that after the briefs are filed and see w h a t it looks like, Your Honor. T H E COURT: All right. I normally view the amicus I rarely find

b r i e f s as supplementing your arguments.

m y s e l f diverted to a issue raised solely by an amicus. M R . GERSHENGORN: T H E COURT: Okay.

I think that I should be focusing on

t h e issues raised by the parties. M R . GERSHENGORN: T H E COURT: Thank you, Your Honor.

All right.

A n y t h i n g further this morning? M R . GETCHELL: No, Your Honor. No, sir.

M R . GERSHENGORN:

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T H E COURT:

All right.

9 I'll see you-all on July

1 s t at 10:00 a.m. for argument on the motion to dismiss a n d the motion challenging subject matter jurisdiction. A n d on October the 18th for argument on the motion for s u m m a r y judgment. o n the 1st of July. t h e summary judgment? M R . GETCHELL: An equivalent amount would be fine. That's fine, Your Honor. I'll allow you an hour, no I'm allowing one hour for each side And how much time do you want on

M R . GERSHENGORN: T H E COURT: Okay.

l o n g e r than an hour and a half per side, all right? M R . GETCHELL: Okay. Thank you, Your Honor.

M R . GERSHENGORN: T H E COURT: morning. M R . GETCHELL:

Nice to see you gentlemen this

Thank you, Your Honor.

T H E COURT: Court will stand in recess. ( T h e proceeding concluded at 9:24 a.m.) R E P O R T E R ' S CERTIFICATE I, Krista M. Liscio, OCR, RMR, Notary P u b l i c in and for the Commonwealth of Virginia at l a r g e , and whose commission expires March 31, 2012, N o t a r y Registration Number 149462, do hereby certify t h a t the pages contained herein accurately reflect t h e notes taken by me, to the best of my ability, in t h e above-styled action. Given under my hand this 4th day of June, 2010. ______________________________ Krista M. Liscio, RMR Official Court Reporter