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Rivas v. California Franchise Tax Board

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 11, 2009

MICHELLE RIVAS AND THOMAS KASCHAK, PLAINTIFFS,
v.
CALIFORNIA FRANCHISE TAX BOARD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER AFTER SCHEDULING CONFERENCE

Date of Scheduling Conference. May 8, 2009.

I. Summary of Pleadings.

1. The Plaintiffs' Complaint asserts causes of action for:

(1) denial of due process pursuant to 42 U.S.C. § 1983; (2) excessive force; (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress; and (5) conspiracy. Plaintiffs contend that the Defendants committed said acts by, among other things, raiding their home in the early morning hours, restricting their freedom and movement without just cause, and denying them access to legal counsel despite countless demands over the course of a lengthy interrogation. Further, Plaintiffs allege that Defendants, and each of them, engaged in a conspiracy to perpetrate falsehoods and fraudulent allegations upon Plaintiffs, to the detriment of Plaintiffs.

2. On December 23, 2008 this Court granted in part and denied in part Defendants' motion to dismiss as follows:

a. The Court granted the motion to dismiss Plaintiff Rivas' entire action. It dismissed all of her federal claims on statute of limitations grounds and all of her state tort claims for failing to allege facts demonstrating or excusing compliance with the California Tort Claims Act (CTCA) claim presentation requirement.

b. The Court granted the motion to dismiss Plaintiff Kaschak's federal official capacity claims against Chiang and Railsback and all federal search-related claims against Chiang on statute of limitations grounds. The court denied the motion as to Kaschak's individual capacity claims against federal search-related claims against Railsback and the FTB and his possible federal excessive force claims against Railsback and Chiang. The court also granted the motion as to all of his state tort claims for failing to allege facts demonstrating or excusing compliance with the CTCA claim presentation requirement.

c. The Court stayed the action as to all claims except the excessive force claims.

d. The court allowed Plaintiff Kaschak 30 days from the date of the order to amend his complaint consistent with its decision.

II. Orders Re Amendments To Pleadings.

1. Plaintiff shall have five days to file any amended complaint. Thereafter, Defendants shall have 60 days to respond to the amended complaint. If any new pleading issues are raised by motion, following the ruling by the Court on such a motion, to the extent claims survive, a further Scheduling Conference shall be held. The parties shall notify the courtroom deputy clerk and obtain a new Scheduling Conference date once a ruling on any pleading motion to the amended complaint has been resolved.

IT IS SO ORDERED.

20090511

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