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Kassem v. Chertoff

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 5, 2008

NAGEEB KASSEM AND NORA KASSEM, PLAINTIFF,
v.
MICHAEL CHERTOFF, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION FOR ORDER EXTENDING TIME TO RESPOND TO THIRD AMENDED COMPLAINT

(Document 40)

This is an immigration case brought by Nageeb Kassem and his wife Nora Kassem, seeking lawful permanent resident status for Nageeb. On July 23, 2008, defendants Michael Chertoff, Secretary of the U.S. Department of Homeland Security ("DHS"), Julie Myers, Secretary for Homeland Security for Immigration and Customs Enforcement ("ICE"), Jonathan Scharfen, Acting Director of Citizenship and Immigration Services ("CIS"), Don L. Riding, Field Office Director for the Fresno District of CIS, Nancy Alcantar, Field Office Director, San Francisco District of ICE, Ronald LeFevre, Chief Counsel, ICE San Francisco District, Michael Mukasey, Attorney General, David L. Neal, Chief Immigration Judge, Executive Office for Immigration Review ("EOIR"), and Polly Webber, Immigration Judge, filed an Ex Parte Application for Order Extending Time for Defendants to Respond to Plaintiffs' Third Amended Complaint and Supplemental Complaint. The Court held a telephonic hearing on July 31, 2008, before the undersigned. Assistant United States Attorney Audrey Hemesath appeared on behalf of defendants and attorney Bruce Leichty appeared on behalf of Plaintiffs.

Plaintiffs commenced this action on December 31, 2007 by filing a Complaint for Writ of Mandamus seeking mandamus relief related to, among other things, alleged delay in a background investigation by Immigration and Customs Enforcement. On March 3, 2008, the government filed a Motion for Extension of Time to file an answer to the complaint. On March 12, 2008, Plaintiffs filed a Motion for Temporary Restraining Order and a First Amended Complaint. The Court denied the Motion for Temporary Restraining Order on March 19, 2008. The Court granted the government's motion for an extension of time on March 27, 2008, ordering the government to file their responsive pleading on or before May 2, 2008. Citing, "recent administrative action involving Plaintiffs," on May 12, 2008, the parties stipulated to a 10-day extension of time for the government to file its response to the First Amended Complaint. On May 13, 2008, Plaintiffs filed a Second Amended Complaint and on May 21, 2008, the government sought an extension of time in which to respond. The Court granted the motion, extending the responsive date to August 1, 2008.

On July 17, 2008, Plaintiffs filed a Third Amended Complaint. On July 23, 2008, the government filed the Motion for Extension of Time which is now before the Court.

At the telephonic hearing held on July 31, 2008, the parties explained that since the commencement of this action, numerous administrative actions relating to Plaintiffs' case have occurred, which have required changes to the original complaint. Plaintiffs have now added additional defendants and claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens"), which provides a remedy for violation of civil rights by federal actors. The government seeks an extension of time to respond to the Third Amended Complaint in order to adequately respond to these new claims. Plaintiffs do not oppose an extension of time as to the new defendants but object to an extension of time for the existing defendants and claims.

As discussed at the hearing, the Court finds good cause to grant the government's request in part. On July 17, 2008, Plaintiffs added new defendants and claims which are significantly different from the claims in the Second Amended Complaint. The government is entitled to more than 14 days to respond to these new developments. Accordingly, the government is granted a 60-day extension, or until September 30, 2008 in which to file a response to all of the Bivens claims in the Third Amended Complaint. As to all other claims, the government shall file a response on or before August 15, 2008.

IT IS SO ORDERED.

20080805

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