Opinion
21-cv-01263-BAS-BGS
01-14-2022
SHAWARMA STACKZ LLC, Plaintiff, v. JAY JWAD, et al., Defendants.
ORDER DENYING DEFENDANTS' EX PARTE APPLICATION FOR AN EXPEDITED BRIEFING SCHEDULE (ECF NO. 33)
Hon. Cynthia Bashant, United States District Judge.
Before the Court is Defendants' ex parte application for an order shortening the time for Plaintiff to respond to Defendants' motion to permit the installation of a new restaurant or in the alternative permit the sale of the location, liquidation, and transfer of the lease (“Motion”). (Defs.' Mot., ECF No. 32; Ex Parte App., ECF No. 33.) Defendants claim that this ex parte relief is necessary to avoid the financial hardship imposed on Defendants because of the Court's December 8, 2021 Order granting Plaintiff's motion for preliminary injunction (“Order”). (ECF No. 24.) Plaintiff opposes the application. (Ex Parte App. at 2.)
“‘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.'” Langer v. McHale, 13-CV-2721-CAB-NLS, 2014 WL 4922351, at *2 (S.D. Cal. Aug. 20, 2014) (quoting Clark v. Time Warner Cable, No. CV 07-1707-VBF(RCX), 2007 WL 1334965, at *1 (C.D. Cal. May 3, 2007)). “The ‘opportunities for legitimate ex parte applications are extremely limited.'” Horne v. Wells Fargo Bank, N.A., 969 F.Supp.2d 1203, 1205 (C.D. Cal. 2013) (quoting In re Intermagnetics Am., Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). To be proper, an ex parte application must demonstrate good cause to allow the moving party “to go to the head of the line in front of all other litigants and receive special treatment.” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F.Supp. 488, 492 (C.D. Cal. 1995).
Accordingly, the use of an ex parte procedure is justified only 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).” Horne, 969 F.Supp.2d at 1205 (citing Intermagnetics, 101 B.R. at 193). “[T]he moving party must show that . . . it either did not create the circumstances warranting ex parte relief or that the circumstances occurred as a result of excusable neglect.” Al Otro Lado, Inc. v. Wolf, No. 17-CV-02366-BAS-KSC, 2020 WL 8617490, at *1 (S.D. Cal. Dec. 7, 2020).
This district's civil local rules further require that in support of any ex parte application, the moving party must submit an affidavit or declaration stating:
(1) that within a reasonable time before the motion the [moving] 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's attorney.
Civ. L.R. 83.3(g).
Here, Defendants' ex parte application fails both procedurally and substantively, and the Court thus denies the application. Procedurally, Defendants have not submitted an affidavit or declaration as required under Civ. L.R. 83.3(g). Substantively, Defendants' financial hardship argument in Defendants' Motion does not provide a basis for the requested ex parte relief because, as this Court has found in its December 8, 2021 Order, the alleged injury was caused by Defendants. In their Motion and supporting declaration, Defendants argue that their Miami restaurant's closure has left its former employees unemployed and Defendants at the risk of filing for bankruptcy. (Jwad Decl. ¶ 3, ECF No. 32-1.) The Court has addressed Defendants' alleged financial hardship before and finds, as it has previously, that it is the Defendants who have brought on the risk of bankruptcy or loss of its employees by engaging in conduct that potentially infringes upon Plaintiff's protected marks. (Order at 39-40, ECF No. 24.) Therefore, Defendants have not made an adequate showing warranting the requested ex parte relief. See Al Otro Lado, 2020 WL 8617490, at *1.
Accordingly, the Court DENIES Defendants' ex parte application. (ECF No. 33.)
IT IS SO ORDERED.