Wednesday, July 09, 2014

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

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.”

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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