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Kassem v. Napolitano


May 8, 2009


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

Defendants' First Ex Parte Application For Order Extending Time For Defendants To Respond To Plaintiffs' Fourth Amended and Supplemented Complaint


By this ex parte application, the Defendants, Janet Napolitano, Secretary of the U.S. Department of Homeland Security ("DHS"), John P. Torres, Assistant Secretary for Homeland Security for Immigration and Customs Enforcement ("ICE"), Michael Aytes, Acting Deputy Director of Bureau of Citizenship and Immigration Services ("CIS"), Susan Curda, Director of Sacramento District of CIS, Don L. Riding, Field Office Director for Fresno Field Office of CIS, Timothy Aitken, Field Office Director, San Francisco District of ICE, Ronald LeFevre, Chief Legal Counsel, San Francisco District of ICS/CIS, Eric Holder, Attorney General, Thomas Snow, Acting Chief Judge, Executive Office for Immigration Review ("EOIR"), Polly Webber, Immigration Judge, Jonathan Scharfen, former Deputy Director of CIS, and Michael Chertoff, former Secretary of DHS, respectfully request that the Court enter an order extending the time for the Defendants to respond to Plaintiffs' Fourth Amended and Supplemented Complaint filed on May 1, 2009 [Docket #61]. In support of this ex parte application, the Defendants respectfully state as follows:

1. On March 27, 2009, the Court issued an order granting the Defendants' Motions to Dismiss for lack of jurisdiction and failure to state a claim [Docket #43 (United States' Motion) and #50 (Individual Capacity Motion)] but granted Plaintiffs leave to amend the Complaint one additional time [Docket #58]. On April 22, 2009, the Court amended its order to indicate that the deadline for this filing was May 1, 2009 [Docket #59].

2. Plaintiffs filed the Fourth Amended Complaint on May 1, 2009 [Docket #61]. The Fourth Amended Complaint adds 21 pages to the Complaint, seven new defendants one of whom (Susan Curda) is also sued in her individual/personal capacity, and a new cause of action against the United States. The Fourth Amended Complaint is now 56 pages long with nine causes of action.

3. Rule 15 of the Federal Rules of Civil Procedure, regarding amended and supplemental proceedings, does not specify the time for filing an answer where both new parties and new causes of action are included in the supplemented complaint. Rule 15(a) regarding amended complaints indicates that the answer is to be filed within 10 days from the service of the amended pleading, see Fed. R. Civ. P. 15(a)(3), which in this case would be May 15, 2009. See Fed. R. Civ. P. 6(a)(2).

4. Individual capacity representation for Curda is not automatic. Before the United States Department of Justice may personally represent Curda in her individual capacity, she must formally request representation by the Department of Justice, through her supervisor and agency litigation department. The agency will then forward her request with its recommendation to the Department of Justice. Although steps have been taken to expedite the representation process for Curda in this matter, the process still takes time, even under the best of circumstances. Moreover, as a new defendant to this litigation sued in her individual capacity, Curda is entitled to 60 days to respond to the Fourth Amended Complaint. See Fed. R. Civ. P. 12(a)(3). Allowing additional time for all Defendants would also allow Curda time to request representation and potentially join the other Defendants in their response to the Fourth Amended Complaint. This will avoid an unnecessary duplication of responses to the Fourth Amended Complaint and thus save the Court time.

5. Finally, existing litigation responsibilities for all three Justice Department attorneys representing the Defendants in this matter mean that more time is needed to respond to the new cause of action and issues raised in the Fourth Amended Complaint.

6. In light of the foregoing, it is respectfully requested that the Court extend Defendants' time to respond by 30 days to June 15, 2009. Defendants do not believe this 30-day extension will be prejudicial to the Plaintiffs, however, Plaintiffs' counsel has not indicated a willingness to stipulate to this extension of time.

Dated: May 7, 2009


IT IS ORDERED that the Defendants' time to respond to the Fourth Amended Complaint is extended to June 15, 2009.



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