1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12520249v.1 / 33250-270008 JON D. MEER (State Bar No. 144389) jmeer@seyfarth.com SIMON L. YANG (State Bar No. 260286) syang@seyfarth.com SEYFARTH SHAW LLP 2029 Century Park East, 35th Floor Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 LORIE E. ALMON (admitted pro hac vice) lalmon@seyfarth.com SEYFARTH SHAW LLP 620 Eighth Avenue, 32nd Floor New York, New York 10018 Telephone: (212) 218-5500 Facsimile: (212) 218-5526 Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DOMINIQUE OSBORNE, on her own behalf on behalf of a class of similarly situated persons pursuant to F.R.C.P. 23 and U.S.C. § 216, and on behalf of the General Public, Plaintiffs, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey Corporation, Defendant. Case No. 2:10-CV-02465 JFW (CWx) [The Hon. John F. Walter] DEFENDANT’S OPPOSITION MEMORANDUM OF POINTS AND AUTHORITIES FOR PLAINTIFF’S EX PARTE APPLICATION IN SUPPORT OF ORDER ALLOWING RELIEF FROM LOCAL RULE 23-3’S NINETY DAY CLASS CERTIFICATION DEADLINE OR TO ALLOW PLAINTIFF’S RESUBMITTED MOTION FOR CLASS CERTIFICATION TO BE DEEMED FILED NUNC PRO TUNC Complaint Filed: April 5, 2010 Trial Date: May 24, 2011 Pre-Trial Conference: May 6, 2011 Motion Cutoff: March 28, 2011 Discovery Cutoff: March 1, 2011 Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 1 of 9 Page ID #:529 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 12520249v.1 / 33250-270008 I. PLAINTIFF’S EX PARTE APPLICATION IS PROCEDURALLY IMPROPER Plaintiff has filed ex parte papers arising from an Order to strike a prior pleading due to a filing defect. Ironically, Plaintiff’s ex parte papers are also defective. The Court’s Scheduling and Case Management Order is clear. It states that ex parte practice is “strongly discouraged.” (See Order filed June 15, 2010, p. 6) (citing Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488 (C.D. Cal. 1995)). The Order also states that the Court “will require strict adherence to proper ex parte procedures for any ex parte application filed with the Court. Id. Plaintiff’s ex parte application does not demonstrate “strict adherence” -- or even minimal adherence -- to the required ex parte procedures.1 An ex parte application must be submitted in two parts. As stated in Mission Power, “[a]n ex parte application should never be submitted by itself. It must always be accompanied by a separate proposed motion for the ultimate relief the party is seeking.” Mission Power, 883 F. Supp. at 492. As the Court explained, “[t]he first part should address only why the regular noticed motion procedures must be bypassed. The second part consists of papers identical to those that would be filed to initiate a regular noticed motion.” Id. The Court then held that these requirements must be followed for all ex parte applications: These are separate, distinct elements for presenting an ex parte motion and should never be combined. The parts should be separated physically and submitted as separate documents. Id. (italics in original). 1 For example, the caption page for Plaintiff’s ex parte application lists several incorrect dates. Plaintiff lists a trial date of June 24, 2011, although the Court has set the trial date for May 24, 2011. (Order filed June 15, 2010, p. 31.) Plaintiff lists a pre-trial conference date of June 6, 2011, although the Court has set the pre-trial conference for May 6, 2011. (Id.) Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 2 of 9 Page ID #:530 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 12520249v.1 / 33250-270008 In this case, Plaintiff has submitted a single combined document, in direct violation of the ex parte requirements. Plaintiff’s papers do not include a separate ex parte application to address why the regular noticed motion procedures should be bypassed. Instead, Plaintiff’s papers solely address issues with respect to the filing date for Plaintiff’s Motion for Class Certification. Thus, Plaintiff’s ex parte papers should be stricken because the papers are procedurally defective. II. THE RELIEF SOUGHT IN PLAINTIFF’S APPLICATION IS UNDULY PREJUDICIAL TO DEFENDANT Plaintiff’s ex parte application seeks several alternative forms of relief. Plaintiff seeks nunc pro tunc relief or permission to file a notice of errata, both of which would allow the Motion for Class Certification to be retroactively re-filed on July 19, 2010. Although the Court has already stricken Plaintiff’s Motion for Class Certification, Plaintiff argues that, by correcting the filing defect in a pleading, the original filing date can be restored. Alternatively, Plaintiff seeks a new hearing date so that the Motion for Class Certification can later be filed. In seeking a new hearing date, Plaintiff requests relief from Local Rule 23-3, which requires a party to move for class certification within 90 days after filing a complaint. Plaintiff’s requests for different forms of relief create an untenable position for Defendant. The Court has issued an Order stating that “[n]o applications or stipulations extending the time to file any required document or to continue any date are effective until and unless the Court approves them.” (Order filed June 15, 2010, p. 6.) Because Plaintiff’s application cannot be effective until and unless it is approved by the Court, the briefing period for Plaintiff’s Motion for Class Certification is uncertain. On one hand, Plaintiff seeks to have Defendant prepare an opposition to a Motion for Class Certification as if the original filing date for the moving papers has been restored. This would require Defendant to expend time and resources to Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 3 of 9 Page ID #:531 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 12520249v.1 / 33250-270008 prepare papers for a motion that has already been stricken. On the other hand, if Defendant does not expend the time and resources to prepare its opposition papers based on the original filing date, Defendant will be significantly disadvantaged if the Court restores the original filing date, which would allow Defendant little or no time to file an opposition.2 Either way, Defendant will be unduly prejudiced. Regardless of the Court’s subsequent decision on Plaintiff’s ex parte application, Plaintiff has already prejudiced Defendant by consuming time that would have otherwise been spent opposing Plaintiff’s motion. This form of gamesmanship should not be rewarded. See, e.g., Mission Power, 883 F. Supp. at 490 (noting that “gamesmanship” often accompanies ex parte applications; “The goal often appears to be to surprise opposing counsel or at least to force him or her to drop all other work to respond on short notice.”). III. PLAINTIFF SHOULD NOT BE EXCUSED FROM THE REQUIREMENTS OF LOCAL RULE 23-3 The Order issued by the Court in this case states that “[m]otions for class certification shall be filed in accordance with Local Rule 23-3.” (Order filed June 15, 2010, p. 31; emphasis added.) Local Rule 23-3 states that “[w]ithin 90 days after service of a pleading purporting to commence a class action . . . the proponent of the class shall file a motion for certification that the action is maintainable as a class action, unless otherwise ordered by the Court.” Here, Plaintiff concedes that the deadline for filing a Motion for Class Certification in this case was July 19, 2010, but seeks an extension of time. Plaintiff’s counsel claims that an extension is proper because the filing defect for the Motion for Class Certification was minor, at least in counsel’s view. Plaintiff’s 2 If the original filing date is restored, the parties are not likely to receive an Order from the Court until Friday, July 23, 2010. This would mean that Defendant might have less than one business day to prepare its opposition papers to be filed on the following Monday, July 26, 2010. Of course, this would be unduly prejudicial to Defendant. Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 4 of 9 Page ID #:532 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 12520249v.1 / 33250-270008 counsel states that the failure to list the correct hearing time for the Motion for Class Certification was merely a “typographical error,” which should constitute excusable neglect.3 So-called typographical errors are not excusable neglect if the errors could have easily been prevented. The Judge’s Procedures and Schedules issued by the Court state that all hearings are held at 1:30 p.m. only on a Monday. If Plaintiff’s counsel had more carefully reviewed these written procedural requirements, the defect regarding the time set for the hearing could have been avoided. The failure of Plaintiff’s counsel to designate the correct hearing time does not constitute the type of “excusable neglect” that allows relief from Local Rule 23-3. Ignoring filing requirements or instructions for scheduling hearings cannot be an excuse for filing a defective pleading. Even when class certification is at stake, filing defects may not allow a party more time to file corrected papers. See, e.g., Watson v. Schwarzenegger, 2009 WL 1956222 at *1 (9th Cir. 2009) (“The district court did not abuse its discretion in denying [plaintiff’s] motion for relief from Local Rule 23-3 because [plaintiff’s] unfamiliarity with the local rules and unnecessary delay in filing his motion did not constitute excusable neglect.”) (citing Fed. R. Civ. Proc. 6(b)(1)(B); Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004).4 3 Plaintiff’s counsel states in his declaration that the filing defect was caused by “a single key stroke mistake.” (Black Decl., ¶ 5.) However, Plaintiff’s counsel listed the incorrect hearing time on 5 separate pleadings filed with the Court in connection with the Motion for Class Certification on July 19, 2010. Plaintiff’s counsel also listed an incorrect trial date and pre-trial conference date on the same 5 separate pleadings filed with the Court at the same time. Plaintiff’s counsel then continued to list an incorrect trial date and pre-trial conference date when he refilled 5 separate pleadings in connection with the Motion for Class Certification on July 21, 2010. In total, Plaintiff’s counsel has filed 11 pleadings, including Plaintiff’s ex parte application, containing caption information that is incorrect. This repeated disregard for the Court’s Order and procedures shows more than “a single key stroke mistake.” Similarly, Plaintiff’s counsel’s disregard for detail is demonstrated again in his declaration, in which he states that he met and conferred with Defendant’s counsel on July 19, 2010. (Black Decl., ¶ 5.) This is not true. 4 Plaintiff certainly could have filed the Motion for Class Certification before the expiration of the 90-day period under Local Rule 23-3. By waiting until the last Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 5 of 9 Page ID #:533 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 12520249v.1 / 33250-270008 IV. PLAINTIFF DID NOT PROPERLY MEET AND CONFER PRIOR TO FILING THE EX PARTE APPLICATION Prior to filing the ex parte application, Plaintiff did not obey the meet and confer requirements under Local Rule 7.19.1. This has further prejudiced Defendant. When Plaintiff’s counsel sought to meet and confer about the filing date for the Motion for Class Certification, Plaintiff’s counsel stated that he would only be seeking a new subsequent filing date for the Motion for Class Certification, and would be requesting relief from Local Rule 23-3. (Meer Decl., ¶ 4.) Plaintiff’s counsel never stated that he would be filing an ex parte application for nunc pro tunc relief or permission to file a notice of errata in order to retroactively restore the filing date for the Motion for Class Certification to July 19, 2010. (Meer Decl., ¶¶ 3-5.) Indeed, Plaintiff’s counsel sent an email at 4:07 p.m. on July 21, 2010 indicating that “[w]e have filed an ex parte application for relief from the certification deadline of Local Rule 23-3.” (Meer Decl., ¶ 4, Ex. A.) No where in the email does Plaintiff’s counsel indicate that Plaintiff would be seeking nunc pro tunc relief or permission to file a notice of errata. (Meer Decl., ¶ 4, Ex. A.) In fact, Plaintiff’s counsel stated that he anticipated filing an ex parte application the following Monday, July 26, 2010, in order to seek relief from Local Rule 23-3. In order to avoid any confusion, Defendant’s counsel asked Plaintiff’s counsel to confirm their mutual understanding that the prior briefing schedule did not remain in effect and Plaintiff’s counsel replied that the prior briefing schedule had been abandoned because “the motion has been stricken.” (Meer Decl., ¶ 5.) Plaintiff’s counsel confirmed in an email that “the briefing schedule for our motion possible date to file, Plaintiff assumed all potential risks associated with a defective filing that could not later be corrected. As the Order issued by the Court states, the dates in this case have been set “to enable the parties and their counsel to know well in advance the schedule that will govern this action.” (Order filed June 15, 2010, p. 1.) Thus, Plaintiff had advance notice of the filing date for a Motion for Class Certification, in the Order issued by the Court, as well as in Local Rule 23-3. Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 6 of 9 Page ID #:534 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 12520249v.1 / 33250-270008 filed on July 19th has been vacated.” (Meer Decl., ¶ 3, Ex. A.) As a result of this representation by Plaintiff’s counsel, Defendant’s counsel discontinued work on preparing an opposition to Plaintiff’s Motion for Class Certification, because the original briefing schedule had been abandoned. (Meer Decl., ¶¶ 3-5.) Moreover, Plaintiff’s resubmitted Motion for Class Certification itself sets the hearing date for August 23, 2010. It is improper for Plaintiff’s counsel to now seek relief that was never raised in the prior meet and confer discussions. See, e.g., Local Rule 7-19.1 (“It shall be the duty of the attorney so applying (a) to make a good faith effort to advise counsel for all other parties, if known, of the date, time and substance of the proposed ex parte application and (b) 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.”). Plaintiff’s failure to meet and confer has unduly prejudiced Defendant, for the reasons stated above. The undue prejudice to Defendant should be considered when reviewing Plaintiff’s ex parte application. See, e.g., Lemoge v. U.S., 587 F.3d 1188, 1192 (9th Cir. 2009) (when determining whether to grant relief based on alleged “excusable neglect,” it is an abuse of discretion for a district court to fail to consider “the danger of prejudice to the opposing party”). V. IN THE UNLIKELY EVENT THAT THE COURT IS INCLINED TO GRANT PLAINTIFF’S EX PARTE APPLICATION, THE RELIEF PROVIDED SHOULD BE ONLY A NEW FILING DATE If Plaintiff’s ex parte application is not denied at the outset, the Court should choose the form of relief that causes the least prejudice to Defendant. Because Defendant would be unduly prejudice by a decision to retroactively restore the Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 7 of 9 Page ID #:535 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 12520249v.1 / 33250-270008 prior filing date, Defendant respectfully requests that the Court only consider allowing Plaintiff to re-file the Motion for Class Certification on a later date.5 Also, if the Court grants this form of relief, it should only be to allow Plaintiff to correct the defects in the caption of the Motion for Class Certification. Plaintiff should not be allowed to add additional arguments, evidence or declarants when the papers are re-filed. Local Rule 23-3 is intended to require a party seeking certification to be prepared to file moving papers within 90 days of filing a complaint. If Plaintiff is granted an extension to re-file the moving papers, Plaintiff should not be given an expanded opportunity to present any new material. This would run afoul of the purpose of Local Rule 23-3. VI. CONCLUSION As explained in more detail above, Plaintiff’s ex parte application should be denied because (1) it violates the Order regarding ex parte applications issued by this Court, (2) it violates the Ninth Circuit case authority regarding the procedural requirements for ex parte applications, (3) it violates Local Rule 7-19.1 regarding meet and confer requirements, and (4) will cause undue prejudice for Defendant. /// /// /// /// /// 5 Plaintiff’s [Proposed] Order includes only one form of relief -- a decision to retroactively restore the filing date for the Motion for Class Certification to July 19, 2010. Of course, this is yet another defect in Plaintiff’s ex parte application -- the relief sought in the ex parte application does not match the relief included in the [Proposed] Order. Even worse, the form of relief provided in the [Proposed] Order is a form of relief that was never raised by Plaintiff’s counsel in any prior meet and confer discussions. Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 8 of 9 Page ID #:536 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 12520249v.1 / 33250-270008 However, if the Court is inclined to grant relief to Plaintiff, Defendant respectfully requests that Plaintiff only be allowed to file a Motion for Class Certification with a corrected caption on a later date without the addition of any new arguments, evidence or declarants. DATED: July 22, 2010 SEYFARTH SHAW LLP By: /s/ Jon D. Meer JON D. MEER Attorneys for Defendant THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, INC. Case 2:10-cv-02465-JFW-CW Document 32 Filed 07/22/10 Page 9 of 9 Page ID #:537
