Summary
denying ex parte motion because defendants failed to make an adequate showing of good cause or irreparable injury to warrant ex parte relief
Summary of this case from Bona Fide Conglomerate, Inc. v. SourceAmericaOpinion
Civil No. 13cv2721-CAB-NLS
08-20-2014
Chris Langer, Plaintiff, v. Scott McHale; Whitney Carpenter, and Does 1-10, Defendants.
ORDER DENYING EX PARTE APPLICATION FOR STAY OF PROCEEDINGS, OR ALTERNATIVELY TO SHORTEN TIME, OR ALTERNATIVELY FOR OSC
[Doc. Nos. 38, 41]
I. BACKGROUND
On May 13, 2014, and before any discovery could be undertaken in this case, Defendants filed a motion for partial summary judgment ("MSJ") on the grounds that the subject property had, as of May 9, 2014, been brought into compliance with the ADA and, therefore, there was no basis for injunctive relief. [Doc. Nos. 12, 15.] Defendants further argued that, without injunctive relief, there was no viable federal claim, and the Court should decline to exercise pendent jurisdiction on the state law claims for damages. Id. At Plaintiff's request, Magistrate Judge Stormes allowed discovery to go forward so that Plaintiff could respond to the MSJ, ordered the site inspection to go forward, and continued the MSJ so that the discovery could be undertaken. [See Doc. Nos. 21 and 29.] Defendants unilaterally cancelled the site inspection several times, such that Plaintiff was not able to undertake the site inspection prior to the briefing deadline. [See Doc. No. 34 at 2-3.] As a result of the delay in discovery, this Court granted Plaintiff's request to continue the MSJ and ordered all required discovery to be undertaken prior to the MSJ being rescheduled. [Doc. No. 33.]
On August 6, 2014, Magistrate Judge Stormes issued an order requiring, inter alia, the site inspection to occur no later than August 22, 2014. [Doc. No. 34.]
On August 12, 2014, Defendants filed a motion to dismiss ("MTD"), arguing that the business at the location has now been closed, the claim for injunctive relief is now moot, and there is no Article III "case or controversy" left for the court to adjudicate. [Doc. Nos. 35, 37.] The hearing date for the MTD is October 10, 2014.
On August 18,2014, Defendants filed an ex parte application to stay proceedings pending adjudication of the MTD, or alternatively shorten time on the MTD, or alternatively issue an Order to Show Cause ("OSC") regarding why jurisdiction did not terminate on August 11, 2014 when the business at the subject property permanently closed. [Doc. Nos. 38, 41.] Defendants also filed a notice of withdrawal of the pending MSJ. [Doc. No. 39.] Finally, Defendants also requested that Magistrate Judge Stormes vacate the previous order requiring the site inspection to go forward by August 22, 2014. [Doc. No. 40.] On August 18, 2014, Plaintiff filed an opposition to the ex parte application. [Doc. No. 42.]
On August 19, 2014, Magistrate Judge Stormes issued an order, inter alia, denying Defendants' request to vacate the previous order that the site inspection go forward, and reiterating that the site inspection be conducted by August 22, 2014. [Doc. No. 43.]
II. DISCUSSION
Defendant seeks ex parte relief to stay proceedings pending adjudication of the MTD, or alternatively shorten time on the MTD, or alternatively issue an OSC re why jurisdiction did not terminate on August 11, 2014 when the business at the subject property permanently closed. Plaintiff opposes the ex parte application on the grounds that ex parte relief is not warranted.
"Ex parte applications are a form of emergency relief that will only be granted upon an adequate showing of good cause or irreparable injury to the party seeking relief." K. Clark v. Time Warner Cable, 2007 WL 1334965 at *1(C.D.Cal. May 3, 2007) (citing Mission Power Eng'g Co. v. Continental Cas. Co., 883 F.Supp. 488, 492 (C.D.Cal.1995)). The moving party must be "without fault" in creating the need for ex parte relief or establish that the "crisis [necessitating the ex parte application] occurred as a result of excusable neglect." Id. An ex parte application seeks to bypass the regular noticed motion procedure; consequently, the party requesting ex parte relief must establish a basis for giving the application preference. See id. United States District Court Southern District of California Civil Local Rule 7.1(e) outlines the procedures for filing regular motions. Kashani v. Adams, 2009 WL 1068862 at *2 (S.D.Cal. Apr. 21, 2009) (citing S.D. Cal. Civ. R. 7.1(e)). Ex parte proceedings are reserved for emergency circumstances. Id.
Here, Defendants have failed to make an adequate showing of good cause or irreparable injury to warrant ex parte relief. As noted by Magistrate Judge Stormes, even if this Court were to find that the federal claim for injunctive relief is moot, Plaintiff's claims for actual damages under the state law claims are still at issue, whether they be adjudicated here under supplemental jurisdiction, or in the state court. Therefore, the Court sees no need for the requested ex parte relief. The ex parte application [Doc. Nos. 38, 41] is DENIED, the motion hearing date for the MTD remains as scheduled, and there shall be no stay of proceedings or discovery in this matter.
IT IS SO ORDERED. DATED: August 20, 2014
/s/_________
CATHY ANN BENCIVENGO
United States District Judge