The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2720 Attorneys for Defendant
EX PARTE APPLICATION FOR AN ORDER EXTENDING THE TIME FOR DEFENDANT TO RESPOND TO AMENDED COMPLAINT; DECLARATION OF LYNN TRINKA ERNCE; ORDER
Defendant Wendy Spencer respectfully requests that the Court enter an order granting her a 60-day extension of time to respond to plaintiff's complaint. In support of this ex parte application, defendant respectfully represents as follows:
1. On January 31, 2012, plaintiff filed his original complaint alleging eleven causes of action under Title VII. Docket 1.
2. On April 23, 2012, plaintiff filed an amended complaint alleging four causes of action under the Age Discrimination in Employment Act, Title VII, and the Rehabilitation Act. Docket 4. The amended complaint is lengthy -- nearly 60 pages long -- and includes 283 allegations. Id.
3. Plaintiff served the amended complaint on the United States Attorney's Office on April 27, 2012. Docket 8. Defendant's response is due on June 15, 2012. Fed. R. Civ. P. 12(a)(2)
4. On May 16, 2012, the undersigned Assistant United States Attorney ("AUSA") responded to an email from plaintiff in which plaintiff asked the AUSA to acknowledge receipt of the proof of service that plaintiff filed as Docket 8. Declaration of Lynn Trinka Ernce ("Ernce Decl., ¶ 2).
5. In her email to plaintiff, the AUSA acknowledged receipt of the proof of service and also informed plaintiff that she would need additional time beyond June 15, 2012 to review, analyze, and respond to his lengthy amended complaint. Id., ¶ 3. The AUSA asked plaintiff if he would be willing to stipulate to allow defendant additional time to respond to the amended complaint, as permitted by the Local Rules. Id. and Ex. A.Plaintiff responded that he believed defendant's response was due on May 25, 2012, and he stated that he would not agree to stipulate to the requested extension. Id.
6. On May 17, 2012, the AUSA sent plaintiff another email explaining why the response deadline is June 15, 2012, and that, contrary to plaintiff's statements in his May 16 email, there is no large team of attorneys at the agency defending this case. Id., ¶ 6. The AUSA explained that she is the only attorney defending this action and that, in light of plaintiff's decision not to grant the courtesy of an extension, she may decide to seek an extension from the Court directly via ex parte application. Id.
7. That same day, plaintiff responded that he agreed that the response is due on June 15, 2012, and acknowledging that the AUSA may seek an extension from the Court. Id., ¶ 6. and Ex. A.
8. The amended complaint is very lengthy, the allegations are disorganized and confusing, and plaintiff's actual claims being asserted in this action are difficult to discern. While the amended complaint purports to assert claims under ADEA, Title VII and the Rehabilitation Act, there are numerous allegations throughout the pleading which do not appear to relate to claims under any of those federal statutes. Id., ¶ 7.
9. Additionally, some of the claims that plaintiff seems to be asserting in the amended complaint appear to relate to multiple administrative proceedings that occurred before the Equal Employment Opportunity Commission and/or the Merit Systems Protection Board. One of the threshold issues that the AUSA needs to analyze is whether plaintiff has exhausted his administrative remedies for all of his claims in the amended complaint such that the Court has subject matter jurisdiction over the claims. However, as of the date of this application, the AUSA has not been able to complete her analysis because she has not yet received the administrative claim files from the agency. Id., ¶ 8. The AUSA expects to receive the administrative claim files from the agency soon. Id. However, once she receives them, she will need some time to review and analyze them before she can prepare defendant's response.
10. In sum, the AUSA needs additional time to review and analyze the amended complaint and to formulate defendant's response, whether it be an answer to the amended complaint, or, more likely, a motion for more definite statement, and/or a motion to dismiss.
11. The AUSA defending this action carries a full case load and has multiple deadlines, hearings, conferences, and depositions scheduled in the next 30 days. Id., ¶ 9. Additionally, the AUSA is scheduled to be on leave the last two weeks of July/first week of August. Id. Thus, defendant is requesting a 60-day ...