Opinion
BENJAMIN B. WAGNER, United States Attorney, ALYSON A. BERG, Assistant United States Attorney, Fresno, California, Attorneys for Defendant.
EX PARTE REQUEST TO EXTEND DEFENDANT'S TIME TO RESPOND TO COMPLAINT; ORDER
BARBARA A. McAULIFFE, Magistrate Judge.
Counsel for Defendant, Tom Heid, as substituted by the United States ("Defendant") respectfully requests a brief extension to respond to the pro se Complaint filed by Plaintiff Clifford E. Curry. Sr., in state court based on the following:
1. The named defendant Tom Heid is a current employee of the Department of Veterans Affairs. He appears to be sued in his official capacity, and as a result, will be represented by the United States Attorney's Office.
2. Before the United States Attorney's Office can prepare a meaningful response on behalf of the Defendant, which will be a motion to dismiss, for among other reasons, failure to exhaust administrative remedies, Government counsel must review Plaintiff's records. Government counsel is currently in the process of obtaining and reviewing the records and requires additional time to respond to the allegations in the Complaint.
3. A portion of the Plaintiff's records are maintained in an electronic format and have to be manually printed and sent to Government counsel. All efforts have been made to obtain these records since notice of the lawsuit, but additional time is required because the VA records from two locations (Virginia and California) are needed to both establish the timeline of events and support the factual bases for the motion, including necessary affidavits. The VA records include records from the electronic "Virtual VA" system (VVA records) and the Plaintiff's VA benefits claims folder (Claims Folder). The VVA records include Plaintiff's Fiduciary File, i.e., documents related to VA's appointment of VA fiduciaries for Plaintiff, which underlie the subject matter of Plaintiff's lawsuit.
As for the Claims Folder, its physical location is in the VA office in Oakland, California, and due to the volume of documents it has taken over two weeks to copy the pertinent pages, and the process is not completed at this time. The Claims Folder may contain records of VA's notification to Plaintiff of his appellate rights vis-a-vis the appointment of particular VA fiduciaries, which is relevant to Plaintiff's failure to exhaust his administrative remedies and the consequent lack of subject matter jurisdiction over this lawsuit.
4. In light of the foregoing, and to enable the United States Attorney's Office to respond to the Complaint on behalf of Defendant, it is respectfully requested that the Court extend time to respond by approximately 28 days to October 3, 2013. (See also Local Rule 144).
ORDER
For good cause being shown, IT IS HEREBY SO ORDERED, nunc pro tunc, that Defendant has a 28-day extension of time from September 5, 2013, to and including October 3, 2013, in which to file and serve a responsive pleading to Plaintiff's complaint. See Local Rule 144(c).
IT IS SO ORDERED.