Case 2:07-cv-00857-JAG-MCA

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Filed 05/05/2008

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U.S. Department of Justice United States Attorney District of New Jersey Civil Division

970 Broad Street, Suite 700 N ewark, N ew Jersey 07102

general number: (973) 645-2700 telephone: (973) 645-2892 fax: (973) 297-2010 e-mail: jafer.aftab@ usdoj.gov

ELECTRONICALLY FILED 5 May 2008 Hon. Joseph A. Greenaway, Jr., U.S.D.J. Martin L. King, Jr., Federal Building & Courthouse 50 Walnut Street Newark, NJ 07102 Kestelboym v. Chertoff, et al. Civil Action No. 07-857 Your Honor: Please accept this letter brief in opposition to plaintiff's motion for default judgment. A proper recitation of the procedural history is in order. In good faith, the United States filed a motion challenging the Court's ability to hear the matter. In review of unripeness case law, the United States found that courts treat unripeness challenges in various ways, but all treat them as a Rule 12 motion. The United States learned that some courts treat an unripeness challenge as a Rule 12(b)(1), or 12(b)(6) motion, or penumbrally, because unripeness touches on prudence, jurisdiction, and the ability to fashion relief. See e.g., CBS Outdoor, Inc. v. New Jersey Transit Corp., 2007 WL 2509633 at * 9 (D.N.J. Aug. 30, 2007); ISP Envtl. Servs., Inc. v. City of Linden, 2007 WL 1302995 at *7 n. 1 (D.N.J. May 3, 2007). Given the lack of consensus, the United States filed its motion without specifically relying on a particular subsection. The United States's review of the subject matter case law also revealed that while there may be subject matter jurisdiction, there may be an issue of unripeness if the matter was also pending in the administrative court. In a scrupulous effort to distinguish between a subjection matter jurisdiction that necessarily deprives this Court of jurisdiction and a challenge to hear the matter on prudential considerations, the United States carefully crafted its

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motion to dismiss as a motion challenging this Court's ability to hear the matter on the basis of unripeness. After reviewing plaintiff's response to the United States's motion and in submission of its reply to the response, the United States redoubled its effort to clarify that it was not challenging the subject matter jurisdiction of the court, but was challenging the Court's ability to hear the matter for prudential considerations. The United States cited Rule 12 and restated its position with such specificity to leave no doubt regarding its position. Nevertheless, and unfortunately, the Court construed the United States motion as a straight challenge to the Court's subject matter jurisdiction. Accordingly, the United States submitted a motion for reconsideration on the sound basis that the original and only argument presented and re-presented in the reply was not considered or reached. Plaintiff has filed his opposition thereto and then filed a motion for default judgment on the basis that the United States did not file a motion to dismiss under Rule 12. The record clearly refutes this assertion and the United States only need refer this Court to the clear record. Nevertheless, the United States expressly restated this for plaintiff in its motion for reconsideration. However, plaintiff ignored this message. Plaintiff goes further and argues that even if the United States's motion was filed under Rule 12, it was out of time by a day. However, in his attempt to find fault in the United States, plaintiff ignores the reality that plaintiff did not object to the untimeliness of the United States's motion, even if it were so. That he did not present a timely objection, results in a waiver of this objection. Plaintiff, in what appears to be a furious attempt to find fault with the United States, argues that the United States is violating Rule 12(g),(h) for presenting a motion for reconsideration that is based on an issue not originally raised in its motion to dismiss. The United States is baffled by this baseless charge, because the United States has scrupulously brought to the Court's attention exactly what it had brought to the Court's and counsel's attention originally.

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Plaintiff in her final assault upon the United States, argues that the United States nefariously engaged in piecemeal litigation to avoid this forum. This is the last straw. Plaintiff forgets that after the United States looked into plaintiff's Complaint in early 2007, it was the United States that brought to plaintiff's counsel's attention that he filed his complaint on the incorrect basis. Plaintiff returns the grace extended by the United States with disgrace. Had the United States not so advised plaintiff, it could have moved to dismiss for failure to state a claim. Instead, the United States demonstrated its good faith and fairness from the beginning. Plaintiff, thus, hypocritically ignores her own role in the delay in the litigation in an effort to unfairly smear the United States. Accordingly, plaintiff moved to amend the complaint in May, 2007 that this Court granted in July, 2007. In good faith, the United States undertook significant research both as to procedure and substantive law on its only motion to dismiss, and filed a cogent motion on one basis in July, 2007. The Court issued its opinion on this motion in March, 2008. The United States correctly concerned that its sole argument presented in its motion to dismiss had not been reached, properly filed a timely motion for reconsideration in March, 2008. Plaintiff's delay argument is further blunted by the fact that it is the Court that has taken time to consider all of the motions, including plaintiff's motion! This is not fault of the United States. Indeed, given the novelty of the issue, it is proper that the Court provides due deliberation about the matter. Moreover, plaintiff has repeatedly blared about forum-shopping. In its reply to the response to its motion to dismiss, the United States quickly retorted that for all that plaintiff claims that defendant is forum-shopping, so, too, is plaintiff. The hypocrisy is clear. Plaintiff blares louder now. The reason is obvious to the undersigned. Plaintiff's counsel, concerned that the administrative hearing has been scheduled for 16 May 2008 for a long time now, is making every effort, fair or

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otherwise, to cancel the administrative hearing and have a hearing in this Court. Plaintiff ignores the fact that it with the grace of the United States, that plaintiff is at this stage of litigation in the District Court. Plaintiff also ignores the fact that it is the Court that decided the United States's motion in the way that it did. The United States is blameless, and if anything, assisted plaintiff by prompting the amendment of the complaint. Finally, plaintiff's motion for a default judgment is clearly too early. It is an obvious and desperate premature effort to have an adjudication of the merits, despite the lack of substantive opposition that forecloses that avenue. It is a crass effort to forum shop and receive an adjudication without the participation of the United States, despite the fact that the United States has appeared and filed its motion to dismiss in good faith -- a motion that is rightly the subject of a motion for reconsideration. For these reasons, plaintiff's motion for default judgment should be summarily denied. Respectfully submitted, CHRISTOPHER J. CHRISTIE United States Attorney By: /S/ Jafer Aftab JAFER AFTAB Assistant U.S. Attorney

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