City of Harper Woods Employees' Retirement System v. Olver et al

MOTION for Extension of Time to Answer, Move or Otherwise Respond to the Complaint

D.D.C.October 30, 2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT 0F COLUMBIA CITY OFE HARPER WOODS FMPLOYEES' ) Civil No. 1:07-cv-O 1646 RETIREMENT SYSTEM, Derivatively on ) Behaif of BAE SYSTEMS PLC, ) Assigned to: Judge Rosemary M. Collyer Plaintiff, ) RICHARD (DICK) L. OLVER et ai,) Defendants, ) - and - BAIE SYSTEMS PLC, an England and Wales ) corporation,) Nominal Defendant. ) MOTION 0F CERTAIN INJMVIDUAL RAE SYSTEMS PLC DEFENDANTS FOR EXTENSION 0F TIME TO ANS WER,, MO1VE OR OTIIERWISE RESPOND TO THE COMPLAINT Pursuant to Fed. R. Civ. P. 6(b), certain ofithe BAIE Systems pic Defendants, namely Mark H. Ronald, Peter A. Weinberg, and Phillip J. Carroli, hereby move to extend until January il, 2008, the date to answer, move or otherwise respond 10 the Complaint. In an effort 10 establish a cominon response date, the Certain Individual BAF Systems pic Defendants seek the saine extension as that requested by the PNC Financial Services Group, Inc. (Docket No. 16). FACTUAL BACKGROUND On September 19, 2007, Plaintiff filed the Complaint in the above-captioned derivative action against current and former officers and directors of BAIE Systems pic. The Complaint also names as defendants Prince Bandar and entities and individuals assocîated with Riggs Bank. (Docket No, 1). Case 1:07-cv-01646-RMC Document 17 Filed 10/30/2007 Page 1 of 6 On September 20, 2007, in a letter to BAE Systems pic, counsel for Plaintiff proposed that BAL Systems pic and the BAF Systems pic directors and executives named in the Complaint waive fonnai service of process pursuant to Fed. R. Civ. P. 4(d), and indicated that, in exehange for such waiver, Plaint iff would be willing to discuss a common response date for ail BAE Systems pic Defendants. Subsequently, Plaintiff purportedly served with the Compiaint Mark H, Ronald and Peter A. Weinberg, two of the Individual BAF Systems pic Defendants. On October 10, 2007, Plaintiff and counsel for the BAL Systems pic Defendants agreed 10 a limited extension of time for Mark H. Ronald and Peter A. Weinberg 10 answer or otherwise move with respect to the Complaint, in order to allow the Parties to continue to negotiate a framnework for a common date for responses to the Complaint. (Docket No. 10). Wvhile initially denying Ibis limited extension for a lack of good cause shown, the Court later granted the extension until October 31, 2007 following a showing of good cause. (Docket No. 12). Also on October 10, 2007, Defendant Phillip J. Carroll, a current BAL Systems pic Director, was purportedly served. (Docket No. 15). Thus, Plaintiff has purportediy served only îhree of the 26 BAIE Systems pic Defendants named in the Complaint. On Friday, October 19, 2007, Plaintiff s counsel emailed to counsel for the BAL Systems pic Defendants a proposed stipulation addressing waiver of service by ail BAL Sysîems pic Defendants, a common response date 10 the Complaint, and certain provisions relating 10 lead counsel issues. Counsel for Plaintiff and the BAL Systems pic Defendants began 10 work toward an agreement that would avoid the delay and expenses assoeiated wiîh service of process in several foreign countries and wouid ease the administrative burden on the Court that would be caused by multiple response dates, partieularly given that the BAL Systems pic Defendants will move 10 dismiss the Complaint on numerous grounds specified below. During the course of these negotiations, counsel 10 BAF Sysîems pic advised Plaintiff s counsel that Linkiaters is authorized 10 2 Case 1:07-cv-01646-RMC Document 17 Filed 10/30/2007 Page 2 of 6 aecept service for U.S.-resident BAE Systems pic Defendants, and that Linkiaters would use best efforts to obtain consent to waiver from cuitent and former BAF Systems pic Defendants not resident in the U.S. On October 24, 2007, Plaintiff s counsel stated that Plaintiff refiised to enter into any agreement as to waiver of service and a common response date, on the grounds that counsel to the BAF Systems pic Defendants could flot guarantee that consent to waiver of service wouid be obtained from. ail of the former BAE Systems directors before the expiry of the existing stipulation on October 31, 2007. Piaintiff s counsel further refused to agree to, another, limited stipulation as to the three purportedly served Defendants, to enable negotiations to continue. Counsel for the BAF Systems pic Defendants lias requested that Plaintiff s counsel. resumne negotiations. GOOD CAUSE FOR EXTENSION 0F TIMIE Ibis Motion for an extension oftlie date to answer, move or otherwise respond to the Complaint should be granted for the followm"g reasons. First, the above-captioned action is a compiex multi-party case, involving 32 different Defendants, the majority of whom are based or reside outside of the United States, raising challenging issues of service of process, coordination of responses to the Complaint, and case management generaiiy. As to the BAI Systems pic Defendants named in the Compiaint, nominal Defendant BAI Systems pic is an England and Wales corporation based in the United Kingdom. 0f thec 26 current and former BAE Systems pic Directors that Plaintiff lias also namned lu the Complaint, 22 ofithose individuals reside in countries outside ofithe United States. To date, Piaintiff dlaims to have served only three of those Defendants, and on different dates at that, sucli that "in the absence of coordination the Court is already faced with three response dates for answers or motions. Plaintiff lias yet to serve the other 23 BAF Systems pic Defendants, neariy ail of whomn are located outside the United States. Therefore, "lu the absence of tùrther negotiation concerning 3 Case 1:07-cv-01646-RMC Document 17 Filed 10/30/2007 Page 3 of 6 waiver of service and a briefmng sehedule, Plaintiff will presumably continue to load the Court's docket with scattershot service attempts and putative response dates, mueli of which would likeiy be conîested by the 23 unserved BAh Systems pic Defendants. Second, the BAE Systems pic Defendants intend to move to dismiss the Coxnplaint on numerous jurisdictional and substantive grounds, including that: (1) the court lacks personal jurisdiction over some or ail of the BAF Systems Defendants; (ii) Plaintiff lacks standing 10 pursue derivative dlaims under English law (the applicable law given BAE Systems plc's place of incorporation) as it does flot recognize dlaims for the kinds of breaches alleged hin the Complaint;- and (iii) thre United States is an inconvenient and improper forum for a lawsuiî involving an English company and concerning allegations focused principally on conduct occurring ouîside the United States. Thre preparation of motions 10 dismiss on these and possibly other grounds will require significant amounts of tinte in order to allow for tIre briefmng of legal arguments on complex issues of U.S. and EnglisIr law, and the submission of extensive affidavit evidence. Affidavits will be submitted from tIre BAE Systems Defendants directly and from an expert or experts on the relevant aspects of substantive English law. Consolidation of these motions and supporting affidavits into one briefmng schedule instead of more than 20 briefmng schedules would serve judicial economy and conserve tIre resources of tIre parties. SucIr consolidation will not occur unless the parties are afforded additional tinte 10 negotiate. (iranting tins Motion will permit the parties 10 continue 10 negotiate waiver of service issues and a framework for a common date for responses to thre Complaint. It is likely tIraI continuing negotiations will ultimately result in an agreement that (i) avoids thre delay and expense associated with service of pro cess in several foreign countries with differing acceptance of the Hague Convention on thre Service Abroad ofiJudicial and Extra-Judicial Documents in Civil and Commercial Matters; (ii) coordinates thre extensive briefing required in thre conîext of motions to 4 Case 1:07-cv-01646-RMC Document 17 Filed 10/30/2007 Page 4 of 6 dismiss;- (iii) rationalizes the Court's docket for case management purposes; and (iv) eases the administrative and judicial burdens on the Court. Finally, the response date requested in this Motion is reasonable and is intended to fuirther efficiency in case management. First, January il, 2008 is the response date requested by the Defendant PNC Financial Services (Docket No. 16), which lias already been served. Second, should the parties reacli agreement as to consent to waiver of service by any or ail of the remaining BAE pic Systems Defendants, a response date of January il, 2008 rather than something near-term increases the Iikelihood that the yet-unserved BA-E Systems pic Defendants will agree to that response date without the necessity of service. In short, granting an additional extension of time as to three of the BAF Systems pic Defendants named in the Complaint, so as to continue negotiations that may resoive service and case management issues as to, most or ail of the 26 such Defendants namnei in total, is a reasonable use of this Court's authority to manage its docket and constitutes good cause for granting this Motion. Based on the foregoing, the Certain Individual BAE Systems pic Defendants respectfuliy request that the Court extend until January il, 2008, the date to answer, move, or otherwise respond to the Complaint. This Motion is made without waiving any defenses of the Certain individual BAE Systemis pic Defendants as to ineffective service, personal jurisdiction, subject matter jurisdiction, or other legal or equitabie defenses. Ibis Motion is a limnited appearance only, soleiy to obtain the requested relief for an extension of time to respond to the complaint in an orderly fashion, 5 Case 1:07-cv-01646-RMC Document 17 Filed 10/30/2007 Page 5 of 6 .DATED: October 30, 2007 Respectfiilly submitted, Lawrenc ,]yrne I Ba1,&46) LINKLATERS LLP 1345 Avenue ofithe Americas New York, New York 10105 Telephone: (212) 903-9105 Facsimiile: (212) 903-9100 Co unsel for BAF Systems pic Defendants Case 1:07-cv-01646-RMC Document 17 Filed 10/30/2007 Page 6 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT 0F COLUMBILA CITY 0F HARPER WOODS EMPLOYEES' ) Civil No. 1:07-cv-O 1646 RLETIREMENT SYSTEM, Derivatively on ) Behaif of BAF SYSTEMS PLC, ) Assigned to: Judge Rosemary M. Collyer Plaintiff, ) RICHARD (DICK) L. OLVER et ai.,) Defendants, ) - and - BAIE SYSTEMS PLC, an England and Waies) corporation,) Nominal Defendant. ) ORDER Having considered the Motion of Certain Individuai BAE Systems pic Defendants for Extension of Time to Answer, Move, or Otherwise Respond to the Complaint (Docket No. Q it is ORDEPRID that the date for BAE Systems pic Defendants Mark H. Ronald, Peter A. Weinberg, and Phullip J. Carroll, to answer, move or otherwise respond to the Complaint Ès extended until January 11, 2008. Dated: October -,2007 Rosemary M. Collyer United States District Judge Case 1:07-cv-01646-RMC Document 17-2 Filed 10/30/2007 Page 1 of 3 NAMES 0F PERSONS TO BE SERVED The names ami addresses of ail attorneys entitled 10 be noîified ofîthe entry of this order are as follows: Roger M. Adelinan 1100 Connecticut Avenue NW - Suite 73 0 Washington, D.C. 20036 Facsùnile: 212-822-6722 Counsel for Plaintiff Darren. J. Robbins Mary K. Blasy Coughùin Stola Geller Rudman & Robbins LLP 655 West Broadway - Suite 1900 Sani Diego, CA 92101 Facsùnile: 619-231-7423 Counsel for Plaintiff Jonathan W. Cuneo William H. Anderson Cuneo Gilbert & LaDuca LLP 507 C St. N.E. Washington, D.C. 20002 Facsimile: 202-789-1813 Counsel for Plaintiff Michael J. Vanoverbeke Thomas C. Michaud Vanoverbeke Michaud & Timmony PC 79 Alfred St. Detroit, MI 48201 Facsimile: 313-578-1201 Counsel for Plaintiff Christopher T. Lutz Steptoe & Johnson LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 Facsimile: 202-429-3902 Counsel for The PNC Financial Services Group, Inc. 2 Case 1:07-cv-01646-RMC Document 17-2 Filed 10/30/2007 Page 2 of 3 Eric M. Roth Adir G. Waldman Wachtell, Liyton, Rosen & Katz 51 West 52' ýStreet New York, NY 100 19 Facsimile: 212-403-2000 Counsel for Thte PNC Financial Services Group, Inc. 3 Case 1:07-cv-01646-RMC Document 17-2 Filed 10/30/2007 Page 3 of 3