April 29, 2013
LUCY McALLISTER, Plaintiff,
THE UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF THE INTERIOR, KEN L. SALAZAR (in his capacity as Secretary of the United States Department of the Interior), NATIONAL PARK SERVICE, DANIEL N. WENK (in his capacity as Acting Director of the National Park Service), FRANK DEAN (Acting General Superintendent, Golden Gate Recreational Area), Defendants.
MELINDA HAAG (CSBN 132612), United States Attorney, ALEX TSE (CSBN 152348), Chief, Civil Division, ABRAHAM A. SIMMONS (CSBN 146400), Assistant United States Attorney, San Francisco, California, Attorneys for the United States of America.
ADMINISTRATIVE MOTION TO CONTINUE HEARING; DECLARATION OF COUNSEL; [PROPOSED] ORDER
ABRAHAM A. SIMMONS, Magistrate Judge.
Pursuant to Civil Local Rule 7-11, the United States requests that the hearing on the Federal Defendant's motion to dismiss this matter currently scheduled for May 9, 2013 be moved to May 16, 2013. This request is made on the ground that the undersigned attorney is scheduled to be out of the country beginning April 26, 2013 until May 12, 2013.
On July 9, 2012, this court set February 21, 2013 as the last day to file dispositive motions in this case. See Docket No. 16. On February 21, 2013, the Federal Defendants filed a motion to dismiss setting the hearing on the motion for March 28, 2013. Docket No. 18. On February 26, 2013, plaintiff filed a request for, among other things, a continuance of the hearing, an order to re-open discovery and a continuance of the trial in this case. Docket No. 22. On the same day, this court ordered the parties to meet and confer for the purpose of attempting to reach agreement on plaintiff's February 26, 2013 request. Docket No. 23. On March 22, 2013, the parties filed a joint statement describing their inability to agree on new dates. Docket No. 25. On March 26, 2013, this court denied plaintiff's requests from relief but moved the hearing on Federal Defendants' motion to May 9, 2013. Docket No. 26.
The undersigned counsel is scheduled to leave the country for vacation on March 26, 2013. See Declaration of Abraham Simmons, attached. The undersigned counsel contacted plaintiff's counsel requesting a stipulation for a continuance of the hearing. Id. Defendants' counsel made clear that any of the next three Thursdays would not cause a conflict in defendants' counsel's schedule. Id. Defendant's counsel followed up with additional telephone calls. Plaintiff's counsel was apparently unable to respond to the inquiry by close of business April 25, 2013. Id. at ¶ 4. Defendant's counsel anticipates plaintiff's counsel will not object to the continuance once he has had a fair opportunity to consider the request.
REQUEST FOR RELIEF
The undersigned counsel respectfully requests a continuance of one, two or three weeks for the hearing on the pending motion to dismiss. The continuance is not likely to prejudice either party and would permit the undersigned counsel to attend the hearing rather than to have substitute counsel attend.
DECLARATION OF COUNSEL
I, ABRAHAM A. SIMMONS, do hereby state and declare under the penalty of perjury under the laws of the United States that the following statements are true and correct to the best of my knowledge and belief:
1. I am an Assistant United States Attorney in the Northern District of California and I have been assigned to represent the government in the above-captioned matter. Except as otherwise indicated, the facts in this declaration are made of my personal knowledge and if called to testify I would and could competently testify to such facts.
2. I am scheduled to leave the country for vacation on March 26, 2013. Earlier this morning, I contacted Cory Birnberg by email and sent him the following text:
The hearing on Defendants' motion currently is scheduled for May 9, 2013 at 10:00 am. I almost left town without remembering to request that the hearing be continued for a week (i.e., after I get back from vacation). Would you be OK stipulating to a continuance? If the 16th does not work, the 23rd and 30th work for me as well. Please let me know as soon as possible so that I can get a request to the court. Thank you. Abraham Simmons, AUSA
3. When I did not hear back from Mr. Birnberg, I had my administrative assistant call and send a written message. Her email to Mr. Birnberg stated:
Greetings Mr. Birnberg - Hope all is well. I just called and spoke to your secretary Hana and she informed me that you on another line, however you are in the office today.
AUSA Abraham Simmons asked me to contact you regarding the Stipulation to Extend Time for the May 9, 2013 hearing for the above case. He is waiting for your response. Please contact Mr. Simmons at 415/436-7264 or hit "Reply All" button with your response at your earliest convenience.
Thank you very much in advance,
4. At shortly after 4:00 p.m. today, Mr. Birnberg replied with an email stating:
I will send you a reply tomorrow. Thank you.
Cory A. Birnberg
5. I anticipate Mr. Birnberg will not object to the continuance once he has had a fair opportunity to consider the request. Nevertheless, it is important that the court have an opportunity to rule on this request in sufficient time for me to prepare another attorney to attend the hearing, if need be.
I declare under penalty of perjury under the laws of the United States that the above is true and accurate. Executed this 25th day in April, 2013, in San Francisco, California.
The request is granted. The hearing on Federal Defendants' motion to dismiss is continued to May 23, 2013 at 10:00 a.m.