ABSTRACT: RE: UNITED STATES DISTRICT COURT NORTHERN
DISTRICT OF CALIFORNIA, Steven McInchak v. City of Carmel by-the-Sea, et al., Howard
R. Lloyd, presiding, 5:14-cv-03084-HRL:
The NOTICE OF REMOVAL TO FEDERAL
COURT UNDER 28 U.S.C. SECTIONS 1441(b) AND 1367 (FEDERAL QUESTION AND SUPPLEMENTAL),
ANSWER OF DEFENDANTS CITY OF
CARMEL-BY-THE-SEA, JASON STILWELL AND SUSAN PAUL (AFFIRMATIVE DEFENSES and PRAYER FOR RELIEF sections are reproduced) and ORDER SETTING INITIAL CASE MANAGEMENT
CONFERENCE AND ADR DEADLINES, filed July 8, 2014 are embedded. The
INITIAL CASE MANAGEMENT CONFERENCE (CMC) in Courtroom 2, 5th Floor SJ at
1:30 PM on November, 25, 2014.
Note: STRADLING YOCCA CARLSON & RAUTH attorneys, specifically Jeffrey A. Dinkin and Allison E. Burns, state that “an investigation that remains ongoing” and “Petitioner’s conduct remains under investigation as of the date of this Answer.”
Note: STRADLING YOCCA CARLSON & RAUTH attorneys, specifically Jeffrey A. Dinkin and Allison E. Burns, state that “an investigation that remains ongoing” and “Petitioner’s conduct remains under investigation as of the date of this Answer.”
NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C.
SECTIONS 1441(b) AND 1367 (FEDERAL QUESTION AND SUPPLEMENTAL)
ANSWER OF
DEFENDANTS CITY OF CARMEL-BY-THE-SEA, JASON STILWELL AND SUSAN PAUL
AFFIRMATIVE
DEFENSES
FIRST
AFFIRMATIVE DEFENSE
Failure to State
a Claim
As a first and
separate affirmative defense, Respondents are informed and believe and on that
basis allege that the Complaint and all of the purported claims therein are
barred in whole or in part, by the failure to state a claim upon which relief
may be granted.
SECOND
AFFIRMATIVE DEFENSE
Standing
As a second and
separate affirmative defense, Respondents allege that Plaintiff lacks standing
to bring his Complaint and all of the purported claims therein.
THIRD
AFFIRMATIVE DEFENSE
Waiver
As a third and
separate affirmative defense, Respondents allege that the Complaint and the purported
claims therein are barred, in whole or in part, by the doctrine of waiver.
FOURTH
AFFIRMATIVE DEFENSE
Ripeness
As a fourth and
separate affirmative defense, Respondents allege that Plaintiffs purported
claims, and each of them, are not ripe for adjudication.
FIFTH
AFFIRMATIVE DEFENSE
Justification
and Privilege
As a fifth and
separate affirmative defense, Respondents allege that their actions respecting
the subject matters in the Complaint were undertaken in good faith, with the
absence of discriminatory and/or malicious intent to injure Plaintiff, and
constitute lawful, proper and justified means to further the purpose of
engaging in and continuing the City's affairs.
SIXTH
AFFIRMATIVE DEFENSE
Conformance
with Statutes and Regulations
As a sixth and
separate affirmative defense, Respondents allege that to the extent any of
their activities as alleged in the Complaint were pursuant to state or local
law or government regulations, Plaintiffs claims must fail in that such activities
were authorized, appropriate or permitted and therefore cannot form the basis
of any liability.
SEVENTH
AFFIRMATIVE DEFENSE
Failure to
Exhaust Administrative Remedy
As seventh and
separate affirmative defense, Respondents are informed and believe and on that
basis alleges that the Complaint and all of the purported claims therein are
barred in whole or in part, by the failure to exhaust administrative remedies.
EIGHTH
AFFIRMATIVE DEFENSE
No
Protectable Property Interest
As an eighth and
separate affirmative defense, the Complaint is barred because Respondents have
not interfered with any protectable property interest alleged in the Complaint.
NINTH
AFFIRMATIVE DEFENSE
No
Damages
As an ninth and
separate affirmative defense, the Complaint Is barred because
Petitioner/Plaintiff has failed
to show any cognizable damages.
TENTH
AFFIRMATIVE DEFENSE
Unclean
Hands
As a tenth and
separate affirmative defense, the Complaint is barred by the doctrine of unclean hands.
ELEVENTH
AFFIRMATIVE DEFENSE
Discretionary
Authority
As an eleventh
and separate affirmative defense, the Complaint is barred because the relief
sought would improperly interfere with Respondents' discretionary authority.
TWELFTH
AFFIRMATIVE DEFENSE
Employment
At-Will
As a twelfth and
separate affirmative defense, Respondents allege that at all times relevant
hereto, Petitioner was an at-will employee of the City.
THIRTENTH
AFFIRMATIVE DEFENSE
Other
Defenses Reserved
As a thirteenth
and separate affirmative defense, Respondents allege that Plaintiffs purported
claims are barred, in whole or in part, on the basis of other facts and
allegations which are either not yet known or whose materiality or relevance
are not yet fully appreciated, and Respondents reserve the right to amend this
answer and to assert additional defenses.
PRAYER
FOR RELIEF
WHEREFORE,
Respondents pray as follows:
1. That
Plaintiff take nothing by way of his Complaint;
2. That this
Court deny every item of relief requested in the Complaint;
3. That judgment
be entered in favor of Respondents;
4. That
Respondents recover attorneys' fees, as applicable;
5. That
Respondents recover costs of suit incurred herein; and
6. That Respondents
receive such other and further relief as the Court deems just and proper.
DATED: July 7,
2014
STRADLING YOCCA
CARLSON & RAUTH
A Professional Corporation
By: __________________________________
Jeffrey Dinkin
Allison E. Burns
Attorneys for
Defendants
City of
Carmel-by-the Sea; Jason Stilwell; Susan Paul
ORDER SETTING
INITIAL CASE MANAGEMENT CONFERENCE AND ADR DEADLINES
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