Opinion
Case No. CV 12-06874 DMG (CWx)
04-23-2013
Edgar Edusada v. Bank of America, N.A. et al.
Attorneys Present for Plaintiff(s) None Present Attorneys Present for Defendant(s) None Present
CIVIL MINUTES—GENERAL
Present: DOLLY M. GEE , UNITED STATES DISTRICT JUDGE
+-------------------------------+ ¦VALENCIA VALLERY¦NOT REPORTED ¦ +----------------+--------------¦ ¦Deputy Clerk ¦Court Reporter¦ +-------------------------------+
Attorneys Present for Plaintiff(s)
None Present
Attorneys Present for Defendant(s)
None Present
Proceedings: IN CHAMBERS—ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION [DOC. # 25, 26]
On April 3, 2013, Plaintiff Soledad Corona filed the operative First Amended Complaint against Defendant Bank of America, N.A., raising claims for violation of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, violation of the False Advertising Law, Cal. Bus. & Prof. Code § 17500, and fraud, [Doc. # 23]. On April 18, 2013, Plaintiff filed an ex parte application to amend her complaint, seeking to add two new plaintiffs to a proposed second amended complaint to which Defendant had stipulated. [Doc. # 25, 26.]
Doc. # 26 is a corrected version of Doc. # 25. Attached to the ex parte application as Exhibits 3 and 4 is a "Stipulation for Order Granting Leave to File Second Amended Class Action Complaint" and a proposed order. That stipulation and proposed order shall not be acted upon until the parties file it as a free-standing document on the docket, rather than as an exhibit, and submit the proposed order in a manner consistent with the Initial Standing Order [Doc. # 7 at 8].
The Federal Rules explicitly authorize parties, for good cause, to seek relief via an ex parte application for expedited ruling rather than through a regularly scheduled motion. Fed. R. Civ. P. 6(c); see generally Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492-93 (C.D. Cal. 1995) (discussing proper use of the ex parte procedure). To justify ex parte relief, an applicant must make two separate showings. "First, the evidence must show that the moving party's cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures. Second, it must be established that the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect." Mission Power, 883 F. Supp. at 492. An ex parte application "is the forensic equivalent of standing in a crowded theater and shouting, 'Fire!,'" justifying the need for the Court to drop everything and allow the ex parte applicant to "cut in line" in front of every other litigant. Id.; see also Initial Standing Order at 9 [Doc. # 7].
Here, Plaintiff's counsel has not attempted to satisfy either prerequisite. As Plaintiff's counsel points out herself, there is no trial date, and the motion for class certification has not been filed yet. (Decl. of Lenore Albert ¶ 3 [Doc. # 26]). There simply is no crisis justifying an ex parte application.
Even were there a crisis to justify the application, Plaintiff has failed to comply with the Local Rules. In particular, Local Rule 7-19 provides as follows:
An application for an ex parte order shall be accompanied by a memorandum containing, if known, the name, address, telephone number and e-mail address of counsel for the opposing party . . . .C.D. Cal. L.R. 7-19. Local Rule 7-19.1 further requires the applicant to:
advise the Court in writing of efforts to contact other counsel and whether any other counsel, after such advice, opposes the application or has requested to be present when the application is presented to the Court.C.D. Cal. L.R. 7-19.1. Plaintiff's application makes no mention of defense counsel's contact information and no mention whatsoever of efforts to contact opposing counsel to determine whether Defendant would oppose the application.
Therefore, Plaintiff's ex parte application is DENIED without prejudice to the filing of a stipulation or a properly noticed motion. Plaintiff's counsel shall read the Mission Power case to familiarize herself with the proper use of an ex parte application.