Case :-cv-00-kjm-cmk Document Filed 0// Page of 0 GARY L. ZERMAN, CA BAR#: PHILBROOK AVENUE, VALENCIA, CA TEL: ( -0 SCOTT STAFNE, WA BAR#: NORTH OLYMPIC AVE ARLINGTON, WA TEL: (0 0-00 ATTORNEYS FOR PLAINTIFFS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION CITIZENS FOR FAIR REPRESENTATION, et. al., vs. Plaintiffs. SECRETARY OF STATE ALEX PADILLA, Defendant. PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - - Case No.: :-cv-00-kjm-cmk PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES [FRCP Sec. (a( and Local Rule ]; DECLARATION OF GARY L. ZERMAN Hearing Date: August, Hearing Time: 0 a.m. Judge: Hon. Kimberly J. Mueller Courtroom: Trial Date: N/A Action Filed: // NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August,, at 0:00 a.m. in Courtroom, th Floor, of the United States Courthouse located at 0 I Street, Sacramento, CA,, Plaintiffs by and through and through their counsel of record Gary L. Zerman and Scott Stafne will move this Court for Leave to file the attached proposed First Amended Complaint (FAC, pursuant to FRCP, Rule (a( and Local Rule. A copy of the proposed First Amended Complaint is attached hereto as Exhibit A.
Case :-cv-00-kjm-cmk Document Filed 0// Page of COUNSEL CERTIFICATION RE MEET & CONFER The undersigned counsel certifies that he and his co-counsel Scott Stafne have had several telephone conferences on and several follow up email exchanges (beginning on // through //; copies of the emails are attached here as Exhibit B with Defendant Padilla s counsel George Waters, concerning the grounds for Defendant s Motion to Dismiss, the grounds for Plaintiffs proposed FAC and this Motion for Leave to file such. Such issues have been thoroughly tabled, explained and discussed. Meet and confer efforts have been exhausted without resolving such issue, hence this Motion and the proposed FAC. 0 Dated: July, Respectfully submitted, /s/ Gary L. Zerman Gary L. Zerman, CA BAR # Attorney for Plaintiffs MEMORANDUM OF POINTS & AUTHORITIES Plaintiff submits this Memorandum in support of their motion for leave to amend the Complaint. I. PROCEDURAL HISTORY May, Plaintiffs Complaint filed (Dkt. #. May 0, Defendant Motion to Dismiss filed (Dkt. #. May, Plaintiffs counsel began research re correcting complaint deficiencies. July, thru July, - counsel Met & Conferred several times; no resolution. July, Plaintiff filed Motion for Leave to Amend and the proposed FAC. The first direct contact between counsel was on May,, when Mr. Waters called Mr. Zerman, and advised that Defendant would be filing a Motion to Dismiss the Complaint, for lack of subject matter jurisdiction, lack of standing, and failure to state a Claim. Mr. Water PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -
Case :-cv-00-kjm-cmk Document Filed 0// Page of 0 further advised that there was a similar case, Warnken v. Schwarzenegger, 0 WL 00 (E.D. Cal., 0, report and recommendation adopted 0 WL 0 (E.D. Cal., 0. There Plaintiff Warnken was in pro per, and Plaintiffs assert that case is readily distinguishable from this case in numerous regards. Further, the ruling in that case has no precedential value here and cannot be relied upon. See Igartúa v. Obama, F.d, - (st Cir. After Defendant s Motion to dismiss was filed on May 0,, Plaintiffs counsel then began to diligently do additional research to support the Complaint with further factual allegations and law. For example, On July,, in a further attempt to resolve this matter with Mr. Waters, Mr. Stafne sent an email to Mr. Waters, that attached a working DRAFT of the FAC, with several of the revisions done to date. On July,, Mr. Waters sent an email to Mr. Stafne regarding Defendant s position on the complaint/fac and Motion to For Leave to Amend. Mr. Waters advised in part, that the Court s first available hearing date was August,, that he want to see the FINAL draft of the FAC, but that it was very unlikey I would consent to the filing of any amended complaint. as Defendant s Motion to Dismiss (Dkt.# asserted the court did not have subject matter jurisdiction and the complaint should be dismissed with prejudice. On July,, Mr. Zerman sent an email to Mr. Waters, that recapped the earlier same day Meet & Confer tel/call between Zerman, Stafne and Waters, which advised in part: Our position was that Dfdt's MtD was improper as the FAC has cured factual deficiencies and that per Shapiro v. McManus the matter should be submitted to a - judge panel and was not susceptible to a Rule (b( MtD, as the claims in the FAC are not non-existent" or "essentially fictitious". See FAC @ paragraphs. -. and Mr. Stafne's // email to you re sanctions per FRCP, Rule and U.S.C.. You advised you thought your MtD was well founded, advised you would not take it off calendar and would oppose any request for actions. (Moreover, although not discussed in our Meet & Confer, I here bring to your attention the comments of USSC Justice Ginsburg at a // Duke Law School event, where referring to the case of Gill [Wisconsin] v. Whitford - involving the issue of gerrymandering/drawing districts, where similarly the High Court has never set a standard, she stated that the case could be "the most important" that the Court PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -
Case :-cv-00-kjm-cmk Document Filed 0// Page of 0 hears next term. https://www.yahoo.com/news/ruth-bader-ginsburg-gerrymanderingcase-0.html Recall that also was the situation with Baker v. Carr and Reynolds v. Sims. Thus the area or representation/districts is regularly before the Courts and evolving. It is our position that years and over,00,000 residents added to California, without the government of California adding a single representative - presents as issue where the rights of citizens have been willfully historically ignored, which thereby has caused harm of such a magnitude, that judicial intervention must happen to prevent further harm and to secure the rights of citizens. Marbury v. Madison. Please reconsider your position. Later on July,, Mr. Waters sent a reply email that in part stated, Your summary is substantially correct, but I want to make clear my objection to the filing of a First Amended Complaint. and further, reiterated his position the court lacked subject matter jurisdiction and that the complaint should be dismissed, with prejudice. pertinent part: Later on July,, Mr. Stafne sent a reply email back to Mr. Waters that stated in I just want to point out several of the new the causes of action alleged against the state now include those which by their very nature invoke standing. For example, the retaliation claims for the assertion of political speech against specific persons do not fall within the gambit of "generalized harm". Further, it is not clear to me that the political question doctrine applies to claims which allege the state has violated individual liberties based on violations of the federal structure of our government. As your brief indicates the political question doctrine often applies where one branch of the federal government is tasked with a function that the Court is not. Here we deal with several citizens challenging that their liberty interests have been interfered with by California's violation of the federal structure of our government. Individuals have generally been more successful in bringing these types of claims than have been government officials or agencies. Finally, I would note the Fourteenth Amendment has its own penalty provision for non-enforcement, which I do not think federal Courts can simply ignore. Additionally, while I am aware that the arbitrary practice of not increasing legislators has been written into the California Constitution, I am not aware of any authority which suggests the Supremacy Clause does not apply equally to California's statutes, regulations, or constitutional provisions, We look forward to getting you the final complaint so that the people can make their case against, Secretary Padilla and the Secretary can justify to the Court the arbitrary PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -
Case :-cv-00-kjm-cmk Document Filed 0// Page of 0 nature of the State's practice of not increasing the number of legislators to the point of California being a [Republic]. Thus after several good faith Meet & Confers, wherein the issues in dispute were tabled and thoroughly discussed, counsel reached an impasse, and hence this the FAC and this Motion for Leave to File the FAC. II. ARGUMENT Federal Rule of Civil Procedure (a( provides that [t]he court should freely give leave [to amend a complaint] when justice so requires. Fed. R. Civ. P. (a(. The district court has the discretion to decide whether to grant Plaintiff leave to amend. See Swanson v. U.S. Forest Serv., F.d, (th Cir. ; Jordan v. County of Los Angeles, F.d, (th Cir.. In its exercise of this discretion, the court applies Rule to facilitate [a] decision on the merits, rather than on the pleadings or technicalities. U.S. v. Webb, F.d, (th Cir.. Furthermore, the court interprets the language for granting amendments under Rule with extreme liberality. Id. Under the Ninth Circuit Standard Plaintiff Should Be Granted Leave to Amend. When deciding whether to grant leave to amend, a court must consider: ( whether the amendment was filed with undue delay; ( whether the movant has requested the amendment in bad faith or as a dilatory tactic; ( whether movant was allowed to make previous amendments which failed to correct deficiencies of the complaint; ( whether the amendment will unduly prejudice the opposing party and; ( whether the amendment is futile. See Eminence Capital, LLC v. Aspeon, Inc., F.d 0, 0 (th Cir. 0 (citing Foman v. Davis, US, (. PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -
Case :-cv-00-kjm-cmk Document Filed 0// Page of 0 The five factors are not considered equally. Prejudice is the most important factor and is given the most weight. Eminence, F.d at 0. Therefore, [a]bsent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule (a in favor of granting leave to amend. Id. The Ninth Circuit has also held that one of the five Foman factors alone is not sufficient to justify the denial of a request for leave to amend. The Ninth Circuit has found that undue delay alone is insufficient to justify denying a motion to amend and has reversed the denial of a motion for leave to amend where the district court did not provide a contemporaneous specific finding of prejudice to the opposing party, bad faith by the moving party, or futility of the amendment. Bowles v. Reade, F.d, (th Cir.. In this case, Plaintiffs upon learning the deficiencies in the Complaint asserted in Defendant s Motion to Dismiss, timely began research and to prepare the FAC to avoid causing undue delay or prejudice to Defendant. Plaintiffs Counsel have had to conduct further research on voting and the historical precedents with regard to voting practices and the rights of voters and how that corresponds with district size and the dilution of plaintiffs vote. This is a relatively unique area of law and there are few direct precedents on this topic, but many authorities do support our position in this case. Plaintiff has sought to amend the complaint in good faith and this is the first request to amend. There is no prejudice to Defendant as the Pretrial Scheduling Status Conference has not taken place yet. Finally, Plaintiffs FAC corrected errors, added further factual allegations and parties, and further case law rulings, and such are well founded and are not frivolous. PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -
Case :-cv-00-kjm-cmk Document Filed 0// Page of CONCLUSION Based upon the foregoing, this Court should grant Plaintiffs Motion for Leave to File the FAC and Order that the FAC is deemed filed and served. 0 Dated: July,. Respectfully submitted, /s/gary L. Zerman Gary L. Zerman, Attorney CA Bar # Philbrook Avenue Valencia, CA ( -0 Attorney for Plaintiffs. DECLARATION OF GARY L. ZERMAN I, GARY L. ZERMAN, declare:. That I am counsel of record for Plaintiffs in this case, along with Scott Stafne; am over eighteen ( years of age; am not a party in this case; could and would testify truthfully to the matters stated herein; and I have prepared this declaration in support of Plaintiffs Motion for Leave to File the FAC.. Attached here as Exhibit A is a true and correct copy of the FAC. PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -
Case :-cv-00-kjm-cmk Document Filed 0// Page of 0. Attached here as Exhibit B are true and correct copies of the email exchange/chain between Plaintiffs counsel (Mr. Stafne and myself with Defendant s counsel (Mr. Waters re out telephone conferences and follow, discussing the Complaint, Defendant s Motion to Dismiss the Complaint, and Plaintiffs proposed FAC, in an attempt to reach resolution of issues, before Plaintiff filed this Motion for Leave to File the FAC.. That Mr. Stafne and myself have conducted I good faith several Meet & Confer with Defendant s counsel Mr. Waters, in an attempt to resolve the issue concerning Defendant s Motion to Dismiss the Complaint (with prejudice, Plaintiff s Motion for Leave to File the FAC and the FAC. After thorough discussions, we reached an impasse on those issues and agreed that we disagreed. Hence this Motion and the FAC. I declare under the laws of the State of California that the forgoing is true and correct. Executed this day of July,, at Valencia, California. Gary L. Zerman - Declarant PLAINTIFFS MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - -