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

Filing 78

RESPONSE to Motion re 64 MOTION for Leave to File filed by Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II. (Getchell, Earle)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION COMMONWEALTH OF VIRGINIA EX REL. KENNETH T. CUCCINELLI, II, in his official capacity as Attorney General of Virginia, Plaintiff, v. KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services, in her official capacity, Defendant. ) ) ) ) ) ) ) Civil Action No. 3:10cv188 ) ) ) ) ) ) )

MEMORANDUM OF THE COMMONWEALTH OF VIRGINIA IN OPPOSITION TO THE MOTION TO DISMISS WITHOUT PREJUDICE OR FOR A CHANGE OF VENUE Pro se amicus Ray Elbert Parker has moved this Court to dismiss the case without prejudice or to "remand" the case to a District Court in the District of Columbia. follows: 1. First, Mr. Parker, is an amicus, not a party. As such, he may not seek In response to this motion, the Commonwealth of Virginia says as

this relief. Cf. Newark Branch, NAACP v. Harrison, 940 F.2d 792, 808 (3rd Cir. 1991) (collecting authorities on limited role of amicus and refusing to entertain request for relief filed solely by amicus). The actual party defendant has waived any objection to venue. Rule 12(h), F.R. Civ. Pro.

2.

Second, venue is unquestionably proper in the Eastern District of

Virginia. 28 U.S.C. § 1391(e)(2) plainly permits venue for this lawsuit in this Court. Respectfully submitted, KENNETH T. CUCCINELLI, II Attorney General of Virginia CHARLES E. JAMES, JR. Chief Deputy Attorney General E. DUNCAN GETCHELL, JR. State Solicitor General WESLEY G. RUSSELL, JR. Deputy Attorney General STEPHEN R. MCCULLOUGH Senior Appellate Counsel

/s/ E. Duncan Getchell, Jr. E. Duncan Getchell, Jr., VSB #14156 Attorney for Commonwealth of Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 [phone] (Telephone) [phone] (Fax) [e-mail]

2

CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of June, 2010, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to: Ian Gershengorn, [e-mail], Joel McElvain, [e-mail], Jonathan Holland Hambrick, [e-mail], Sheila M. Lieber, [e-mail], and all counsel for Amici. A copy also has been served by first class, postage prepaid, U.S. Mail to Ray Elbert Parker, Pro Se, P. O. Box 320636, Alexandria, VA 22320.

/s/ E. Duncan Getchell, Jr. Counsel

3