Case 2:07-cv-00857-JAG-MCA Document 20 Filed 05/05/2008 Page 1 of 4

U.S. Department of Justice

United States Attorney
District of New Jersey
Civil Division

970 Broad Street, Suite 700 general number: (973) 645-2700

N ewark, N ew Jersey 07102 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

1
 Case 2:07-cv-00857-JAG-MCA Document 20 Filed 05/05/2008 Page 2 of 4

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.

2
 Case 2:07-cv-00857-JAG-MCA Document 20 Filed 05/05/2008 Page 3 of 4

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

3
 Case 2:07-cv-00857-JAG-MCA Document 20 Filed 05/05/2008 Page 4 of 4

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
/S/ Jafer Aftab
By: JAFER AFTAB
Assistant U.S. Attorney