Opinion
24-cv-00397-BAS-JLB
07-24-2024
NJOY, LLC, Plaintiff, v. IMIRACLE (HK) LTD. et al., Defendants.
ORDER DENYING EX PARTE MOTION TO STAY DISCOVERY WITHOUT PREJUDICE
[ECF NO. 64]
HON. JILL L. BURKHARDT, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendants SV3 LLC's, TheSy, LLC's, and Empire Imports, LLC's (collectively, the “Online Defendants) Ex Parte Motion to Stay Discovery (“Ex Parte Motion”). (ECF No. 64.) The Online Defendants seek a stay of discovery pending disposition of a March 26, 2024 Motion to Dismiss (ECF No. 30.) Defendants Aroma Avenue Vape Shop, Cigarettes N More, Cloudhaven Vapors, Inc. and Z Vapor Room (collectively, the “Brick and Mortar Defendants”) filed a notice of joinder to the Ex Parte Motion. (ECF No. 65.) Plaintiff filed a Response in Opposition. (ECF No. 66.)
Because ex parte relief is inappropriate here, the Ex Parte Motion is DENIED without prejudice.
I. PROCEDURAL HISTORY
Plaintiff filed its initial Complaint in this matter on February 28, 2024, alleging violation of California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) and violation of the Prevent All Cigarette Trafficking Act of 2009 (“PACT Act”) (15 U.S.C. § 275 et seq.). (ECF No. 1.) Plaintiff filed a Motion for a Preliminary Injunction on March 20, 2024. (ECF No. 21.)
On March 26, 2024, Defendants SV3, LLC, and TheSy, LLC, filed a Motion to Dismiss regarding the claims against the Online Defendants, alleging a lack of Article III standing and failure to state a claim for which relief can be granted. (ECF NO. 30.) On April 25, 2024, Defendants Z Vapor Room, Aroma Avenue Vape Shop, and Clouhaven Vapors, Inc., filed a Motion to Dismiss regarding the Brick and Mortar Defendants, alleging a lack of Article III standing and alternatively failure to state a claim for which relief can be granted. (ECF No. 45.) Both motions remain pending.
Plaintiff, Online Defendants, and Brick and Mortar Defendants filed a Joint Report of Rule 26(f) Conference on June 11, 2024. (ECF No. 60.) This included a proposed discovery timeline. (Id. at 6.) Pursuant to Civil Local Rule 16.1.a.1, in this District, the time for the issuance of a case scheduling order is adjusted to accommodate the Early Neutral Evaluation Conference, which, pursuant to Civil Local Rule 16.1.c.1, is to be held within 45 days of the filing of an answer. CivLR 16. Although no answer has been filed, the Case Management Conference has not been held, the Rule 26 Conference has not been ordered, and no schedule has been issued, the parties in this case appear to have embarked on discovery on their own initiative.
The Online Defendants filed their Ex Parte Motion on July 9, 2024, arguing that the Motion to Dismiss (ECF No. 30) is potentially dispositive of the entire case against them and can be decided absent additional discovery, thus meeting applicable requirements for a stay of discovery. (ECF No. 64 at 2.) Brick and Mortar Defendants cite their pending April 25, 2024 Motion to Dismiss (ECF No 45) as cause to stay in their joinder. (ECF No. 65.) Plaintiff opposes the Ex Parte Motion on the grounds that ex parte relief is inappropriate under the circumstances and that Defendants do not meet the requirements to stay discovery while the motions to dismiss are pending. (ECF No. 66 at 3-4.)
II. ANALYSIS
A. Legal Standard for Ex Parte Relief
“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.” Greer v. County of San Diego, No. 19-cv-378-JO-DEB, 2022 WL 104724 at *1 (S.D. Cal., Jan. 11, 2022) (citing internal quotation in Langer v. McHale, No. 13-cv-2721-CAB-NLS, 2014 WL 4922351, at *2 (S.D. Cal. Aug. 20, 2014). The legitimate opportunity for ex parte relief is “extremely limited.” Id. (citing internal quotation in Horne v. Wells Fargo Bank, N.A., 969 F.Supp.2d 1203, 1205 (C.D. Cal. 2013)). Use of ex parte proceedings is thus only permissible when
(1) there is a threat of immediate or irreparable injury; (2) there is danger that notice to the other party may result in the destruction of evidence or the party's flight; or (3) the party seeks a routine procedural order that cannot be obtained through a regularly noticed motion (i.e., to file an overlong brief or shorten the time within which a motion may be brought).Id. (citing Horne, 969 F.Supp.2d at 1205).
The Civil Local Rules lay out additional procedural requirements for ex parte motions:
A motion for an order must not be made ex parte unless it appears by affidavit or declaration (1) that within a reasonable time before the motion the party informed the opposing party or the opposing party's attorney when and where the motion would be made; or (2) that the party in good faith attempted to inform the opposing party and the opposing party's attorney but was unable to do so, specifying the efforts made to inform them; or (3) that for reasons specified the party should not be required to inform the opposing party or the opposing party's attorney.CivLR 83.3.g.
To prevail, the moving party must also be faultless in creating the emergent circumstances that led it to seek ex parte relief, or that neglect precipitating the circumstances is excusable. Langer, 2014 WL 4922351, at *2; Mission Power Engineering Co. v. Continental Cas. Co., 883 F.Supp. 488, 492-93 (C.D. Cal. 1995); Honma Golf U.S., Ltd. v. Saddle Creek Corp., No. 21-CV-1131-CAB-WVG, 2021 WL 3171894 at *1 (S.D. Cal. Jul. 26, 2021); Zuehlsdorf v. FCA U.S., LLC, No. 22-55270, 2023 WL 385175 at *1 (9th Cir. Jan. 25, 2023) (mem.); see e.g., Greer, 2022 WL 104724 at *2. The moving party must explain how the need for urgency arose, and what action it has taken, if any, that demonstrates diligence. See Mission Power Engineering Co., 883 F.Supp. At 493.
B. Discussion
i. Good Cause
As Plaintiff argues, the Online Defendants make no assertion as to why ex parte relief is appropriate here, instead proceeding directly into argument as to the relief on the merits. (ECF No. 66 at 7; see generally ECF No. 64-1.) Online Defendants make no allegations that notice to the other party will lead to evidentiary spoliation, flight, or any other dishonorable or adverse action or disastrous result. Likewise, the relief sought is not a type unobtainable from a standard noticed motion. Horne, 969 F.Supp.2d at 1205. From review of the Ex Parte Motion, Plaintiff's Response in Opposition, and the history of the case, the Court can discern no exigent need for relief ex parte. Indeed, it appears that the only urgency comes from the potential existence of pending discovery requests, to which the Online Defendants and Brick and Mortar Defendants would presumably have to serve responses and productions. Thus, the Court finds no good cause for ex parte relief.
ii. Irreparable Injury
As with the other factors in granting ex parte relief, the Online Defendants make no effort they would be irreparably harmed should the Court deny their Ex Parte Motion. Left with only the instant filings and the record of the case, the Court has no facts upon which to base any finding of irreparable harm. Having not held a case management conference or issued a scheduling order, the Court's only knowledge of the parties' discovery needs and progress come from the Joint Report of Rule 26(f) Conference (ECF No. 60), which provides little guidance. Therefore, the Court finds that there is no imminent irreparable harm that will result from denying the Ex Parte Motion.
iii. Faultlessness
Based on the facts and allegations before it, the Court cannot find that the Online Defendants or Brick and Mortar Defendants were faultless in the inception of the situation instigating the Ex Parte Motion. First, the Online Defendants and Brick and Mortar Defendants cite their respective motions to dismiss as the primary grounds for staying discovery. (ECF No. 64 at 2; ECF No. 65.) These motions have been pending since March 2024 and April 2024. (See ECF Nos. 30, 45.) In the intervening time, the parties have voluntarily begun discovery. At any time, presumably, those parties could have filed a noticed Motion to Stay discovery. They did not and provide no reason that they did not- only to now come before the Court seeking emergency relief. This is not the faultlessness or excusable neglect necessary for ex parte relief. See e.g., Greer, 2022 WL 104724 at *2 (“[T]he County could have filed a noticed motion to bifurcate and stay Plaintiff's Monell claims much earlier in the proceedings. The County is not, therefore, entitled to ex parte relief.”); Zuehlsdorf, 2023 WL 385175 at *1.
Second, any claim of faultlessness or excusable neglect is wholly undermined by the fact that the Online Defendants and Brick and Mortar Defendants acquiesced to begin discovery completely voluntarily, after filing their respective Motions to Dismiss- according to the record. (See ECF Nos. 30, 45, 60.) Thus, the Court cannot find the Online Defendants or Brick and Mortar Defendants faultless.
III. CONCLUSION
Because Plaintiff prevails on its procedural argument, the Court need not address the merits of the Motion.
IT IS SO ORDERED.