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Vietnam Veterans of America, et al v. Central Intelligence Agency

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


January 21, 2011

VIETNAM VETERANS OF AMERICA, ET AL., PLAINTIFFS,
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
DEFENDANTS.

IAN GERSHENGORN Deputy Assistant Attorney General MELINDA L. HAAG United States Attorney VINCENT M. GARVEY Deputy Branch Director

STIPULATION AND ORDER EXTENDING TIME FOR NEW DEFENDANTSTO FILE ANSWER TO THIRD AMENDED COMPLAINT

Pursuant to Federal Rule of Civil Procedure 6(b)(1) and Civil Local Rules 6-2 and 7-12, the parties, by and through undersigned counsel, hereby respectfully stipulate, subject to Court approval, to extend the time for Defendants the Department of Veterans Affairs ("VA") and itsSecretary, Eric K. Shinseki (together, the "New Defendants") to file an Answer to Plaintiffs'Third Amended Complaint until the earlier of: (1) 14 days after the Court resolves Defendants'Partial Motion to Dismiss Plaintiffs' Third Amended Complaint, Dkt. No. 187; or (2) April 7,2011. Because the New Defendants intend to respond to the Complaint by filing an Answer and will not file a Rule 12 motion, and because the New Defendants will participate fully in discovery, without waiving any objections to discovery, notwithstanding any delay in filing their Answer, the requested enlargement will not have any effect on the present schedule for the case.

In accordance with Civil L.R. 6-2(a), this Stipulation is supported by the accompanying Declaration of Joshua E. Gardner, counsel for Defendants.

1. Defendants submit that the Declaration of Joshua E. Gardner establishes good causefor the requested enlargement as follows:

a. On November 18, 2010, Plaintiffs filed their Third Amended Complaint in this case.

b. Joshua E. Gardner agreed to accept service on behalf of the New Defendants, and Plaintiffs' counsel served the Third Amended Complaint pursuant to that agreement on November 24, 2010.

c. On December 6, 2010, Defendants filed a partial motion to dismiss Plaintiffs'

Third Amended Complaint. Specifically, Defendants moved to dismiss the notice and health care claims against the Central Intelligence Agency; the health care claims against the Department of Defense, and all claims against the Department of Justice. Defendants did not move to dismiss the claim against VA.

d. On January 10, 2011, the Court, on its own motion, took the Defendants' motion under submission on the papers and vacated the hearing previously scheduled for January 13, 2011.

e. Accordingly, pursuant to the Federal Rules of Civil Procedure, VA and itsSecretary's answer to the Third Amended Complaint is currently due on January 24, 2011; and the answer from the other Defendants, depending upon theresolution of the pending partial motion to dismiss, will be due 14 days after theCourt's resolves that motion.

f. As it did with its prior answer, Defendants intend to file a single answer for all thefederal defendants. The parties agree that the interests of orderly caseadministration will be served by extending the deadline as requested so that theNew Defendants will not be required to file their Answer by January 24, 2011,while the partial motion to dismiss filed on behalf of the other defendants still ispending, the outcome of which will determine both the scope of any answer to befiled by those defendants and the due date for that answer.

2. There have been eleven previous modifications in this case.

a. On March 24, 2009, the parties stipulated to a continuance of the casemanagement conference to June 16, 2009, and the deadline for the joint casemanagement statement to June 9, 2009. On March 31, 2009, the Court entered anOrder establishing the dates to which the parties had stipulated. (Dkt. No. 15).

b. On May 11, 2009, the parties stipulated to enlarge the period for Defendants'response to the Complaint in the form of a dispositive motion by thirty-two days --from May 11, 2009 to June 12, 2009 -- and a corresponding adjustment of thebriefing schedule and hearing date. On May 12, 2009, the Court entered an Orderestablishing the briefing deadlines and hearing date to which the parties hadstipulated. (Dkt. No. 19).

c. On June 4, 2009, Defendants filed a Motion for an Extension of Time to FileResponse to Complaint until June 20, 2009 on the ground that Caroline Wolverton had assumed primary responsibility for the case sixteen days prior tothe deadline for submission of a motion to dismiss. Plaintiffs opposed theextension request. The Court entered an Order granting the requested extensionon June 12, 2009. (Dkt. No. 27).

d. On September 10, 2009, at the behest of counsel for Plaintiffs, the partiesstipulated to an enlargement of the briefing schedule on Defendants' Motion toDismiss and a continuance on the initial case management conference. OnSeptember 15, 2009, the Court entered an Order granting the briefing and hearingschedule to which the parties had stipulated. (Dkt. No. 42).

e. On October 28, 2009, again at the behest of counsel for the Plaintiffs, the partiesstipulated to a continuance of the hearing on Defendants' Motion to Dismiss andthe initial case management conference. On October 29, 2009, the Court entered an Order granting the continuance of the hearing on Defendants' Motion toDismiss and the initial case management conference as the parties had stipulated.

(Dkt. No. 50).

f. On January 27, 2010, Defendants filed a motion to Enlarge the Time to FileAnswer until April 19, 2010 on the ground that Defendants wanted to reviewdiscovery documents that pertained to the factual allegations in Plaintiffs' SecondAmended Complaint. Plaintiffs opposed the extension request. On February 2,2010, the Court entered an Order granting in part the Defendants' Motion toExtend Time, extending the time to file the answer until March 12, 2010.

g. On February 18, 2010, at the behest of counsel for Defendants, the partiesstipulated to extend Defendants' time to respond to discovery requests andproduce documents. On February 23, 2010, the Court entered an Order grantingthe parties' stipulation. (Dkt. No. 66.)

h. On June 29, 2010, Plaintiffs filed a motion to enlarge by two weeks the time forfiling a reply in support of their motion for leave to file a Third Amendedomplaint and sought to reschedule the July 15, 2010 hearing date concerningthat motion. On July 1, 2010, the Court entered an Order granting the Plaintiffs'motion. (Dkt. No. 111.)

i. On September 7, 2010, Defendants filed an unopposed motion to reschedule thehearing date concerning Plaintiffs' motion to compel production of documents;

Plaintiffs' motion to compel Rule 30(b)(6) testimony; the entry of a protectiveorder; and Plaintiffs' motion for sanctions. (Dkt. No. 137.) On September 9,2010, the Magistrate Judge entered an order granting the Defendants' motion.

(Dkt. No. 138.)

j. On November 24, 2010, at the behest of counsel for Plaintiffs, the partiesstipulated to extend Plaintiffs' time to provide Defendants with a settlementproposal. (Dkt. No. 181.). The Magistrate Judge entered the parties' stipulationon December 6, 2010. (Dkt. No. 182.)

k. On December 2, 2010, the parties stipulated to extend the parties' time to comply with the Magistrate Judge's November 12, 2010 order regarding certain discovery disputes. (Dkt. No. 184.) The Magistrate Judge entered the parties' stipulation onDecember 6, 2010. (Dkt. No. 185).

3. Because the New Defendants intend to respond to the Complaint by filing an Answerand will not file a Rule 12 motion, and because the New Defendants will participatefully in discovery, without waiving any objections to discovery, notwithstanding anydelay in filing their Answer, the requested enlargement will not have any effect on thepresent schedule for this case.

NOW THEREFORE, the parties, by and through their undersigned counsel, HEREBY STIPULATE AND AGREE, subject to Court approval, as follows:

1. The New Defendants shall have until the earlier of: (a) 14 days after theCourt resolves Defendants' Partial Motion to Dismiss Plaintiffs' Third Amended Complaint (Docket No. 187); or (b) April 7, 2011, to file their Answer to the Third Amended Complaint.

2. The New Defendants will not file a Rule 12 motion in response to the Third Amended Complaint, and, without waiving any objections to discovery, will continue to participate fully in discovery notwithstanding the fact that the deadline for filing their Answer is extended as requested in this Stipulation.

IT IS SO STIPULATED.

IAN GERSHENGORN Deputy Assistant Attorney General MELINDA L. HAAG United States Attorney VINCENT M. GARVEY Deputy Branch Director /s/Joshua E. Gardner_ JOSHUA E. GARDNER KIMBERLY L. HERB LILY SARA FAREL BRIGHAM JOHN BOWEN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-7583 Facsimile: (202) 616-8202 E-mail: Joshua.E.Gardner@usdoj.gov Attorneys for Defendants Dated: January 21, 2011 GORDON P. ERSPAMER TIMOTHY W. BLAKELY STACEY M. SPRENKEL DANIEL J. VECCHIO DIANA LUO MORRISON & FOERSTER LLP By: /s/ Timothy W. Blakely Timothy W. Blakely [tblakely@mofo.com] Attorneys for Plaintiffs

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: January 25, 2011 The Honorable Claudia Wilken United States District Judge

20110121

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