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St. Matthews Baptist Church of Livermore, Inc. v. Foundation Capital Resources, Inc.

United States District Court, Ninth Circuit

January 15, 2014

ST. MATTHEWS BAPTIST CHURCH OF LIVERMORE, INC., a California non-profit Corporation Plaintiff,
v.
FOUNDATION CAPITAL RESOURCES, INC., a Georgia Corporation and DOES 1 to 100, Inclusive, Defendants.

Edwin C. Schreiber, SBN 41066, Eric A. Schreiber, SBN 194851, Ean M. Schreiber, SBN 284361, SCHREIBER & SCHREIBER, INC., Encino, California, Attorneys for Plaintiff.

REPLY AND DECLARATION IN RESPONSE TO ORDER TO SHOW CAUSE The

EDWIN C. SCHREIBER, District Judge.

There are two cases between the Plaintiff St. Matthews Church of Livermore, Inc. ("Plaintiff") and Foundation Capital Resources, Inc. ("Defendant"). Both originated in California Superior Court, the first, being an action for damages filed on November 20, 2013, the second was a specific performance claim filed on December 6, 2013. Plaintiff was represented by different counsel on both lawsuits. Defendant removed the first action on November 26, 2013 and the second action on December 12, 2013. Defendant also moved to dismiss certain claims in the first action on December 18, 2013. It the interim, it was decided that it was best that:

1. The Plaintiff be represented only by one law firm, so Schreiber & Schreiber, Inc., filed with the Court to now represent Plaintiff in the first action as well;

2. That the actions should be consolidated, and to that end, the parties have all agreed that Defendant is given extra time to respond and that Plaintiff will be filing a consolidated first amended complaint which will then be the sole complaint covering both actions. A stipulation to this effect was previously filed. Plaintiff is in the process of drafting this complaint.

3. The filing of the consolidated first amended complaint will allay some of the concerns raised in the motion to dismiss, and reset the right for Defendant to respond to the claims set forth in the consolidated first amended complaint.

Therefore, Plaintiff respectfully requests that the order to show cause be taken off calendar and that the motion to dismiss also be taken off calendar as the parties have already stipulated an extension to respond to the filing of an amended complaint which Plaintiff expects to file shortly, upon the order of the Court consolidating the actions and permitting the filing of one consolidated first amended complaint.

DECLARATION OF EDWIN C. SCHREIBER

I, EDWIN C. SCHREIBER, SAY:

1. If called as a witness, I could competently testify to the following from my own personal knowledge. I am an attorney duly licensed by the State of California to practice law before all Courts of the State of California, as well as in the Federal Courts for the Northern and Central Districts of California. I am a shareholder of Schreiber & Schreiber, Inc., and am one of the attorneys representing Plaintiff St. Matthews Church of Livermore, Inc. (The "Church").

2. By the time I was retained by my client, there was already one action on file in the Superior Court of California against Defendant Foundation Capital Resources, Inc. ("Defendant"). My firm filed a one cause of action specific performance claim against the same Defendant on December 6, 2013. Both of these actions were removed to Federal Court. The first action was removed on November 26, 2013 and the second on December 12, 2013.

3. I spoke both with counsel for the Church in the first action, as well as counsel for Defendants in both actions. While speaking with the Church's counsel on the first action, it was decided that, because of counsel's unfamiliarity with Federal Court practice, I would be substituted in as counsel in the first case. However, because of the time limits and requirements that Plaintiff stipulate to allow a Magistrate Judge handle the case, former counsel was required to consent before I could be substituted in as attorney of record. Those documents were submitted on January 2, 2014 and the Court has consented to allow my firm to represent the Church in the first action.

4. Similarly, I spoke with Defendant's counsel and it was decided given the fact that the parties were the same, and many legal and factual issues crossed over both cases, it would make the most sense to consolidate the actions into one action and for Plaintiff to file one consolidated first amended complaint. Therefore, in the second action, counsel and I filed a stipulation on January 6, 2014 (a true and correct copy of this document is attached hereto and incorporated herein as Exhibit "A") granting Defendant up to January 31, 2014 to respond in the action. As is of note, the stipulation (page 2, lines 4-9) specifically makes reference to the fact that Plaintiff intends to file a consolidated first amended complaint. Therefore, many of the concerns offered in the motion to dismiss will be addressed via the first amended complaint. I believe the stipulation, combined with the filing of a new consolidated complaint will render the original motion to dismiss moot and Defendant will have a full and fair opportunity to address the issues raised in its lawsuit by and through its response to the new first amended consolidated complaint.

5. The consolidated first amended complaint is virtually complete and I expect to file a stipulation consolidating the actions and permitting the filing of the consolidated first amended complaint, as well as the new complaint itself early next week.

6. I therefore respectfully request that the Court discharge the order to show cause and that it issue an order consolidating the actions and permitting the filing of a consolidated first amended complaint which will now cover all claims made in both lawsuits.

I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.


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