George Wilson et al v. Walgreen Co.

Filing 63

MINUTES: (In Chambers) Order DENYING Defendants Ex Parte Application fora Protective Order 57 IT IS SO ORDERED by Judge Philip S. Gutierrez. (ir)

O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#57
CIVIL MINUTES - GENERAL
Case No.

CV 11-7664 PSG (FFMx)

Title

George Wilson, et al. v. Walgreen Co.

Present:

Date

March 26, 2012

The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present
Proceedings:

n/a
Tape No.

Not Present

(In Chambers) Order DENYING Defendant’s Ex Parte Application for
a Protective Order

Before the Court is Defendant Walgreen Co.’s (“Defendant”) ex parte application for a
protective order. Dkt. # 57. The Court finds the matter appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving and opposing
papers, the Court DENIES the application.
I.

Background

In May 2011, Plaintiffs George Wilson and Tanarica Martin (“Plaintiffs”) filed this
putative class action. Compl. ¶ 1. Plaintiffs are former employees of Defendant who seek, inter
alia, unpaid wages. Compl. ¶¶ 1, 12. In June 2011, Plaintiffs’ counsel Scott Cole placed
information on his firm’s website concerning this case. DeSario Decl. ¶ 3. Plaintiffs’ counsel
also placed an internet ad on the website Facebook regarding this case. Id. Defendant’s counsel
“recently” became aware of the Facebook ad. Tabacopoulos Decl. ¶ 6. Defendant’s counsel is
silent as to when they became aware of the statement on Plaintiff’s counsel’s website.
On March 1, 2012, Defendant sent Plaintiff’s counsel a letter demanding, inter alia, that
he remove the information from his website and cease to utilize Facebook to advertise this case.
Tabacopoulos Decl., Ex. D. Before Plaintiff’s counsel received the cease and desist letter, he
removed the ads from Facebook. DeSario Decl. ¶ 3. On March 15, 2012, Defendant’s counsel
informed Plaintiffs’ counsel that Defendant would be moving ex parte for a protective order
regarding the statements on the website and the Facebook ads. Tabacopoulos Decl. ¶ 8. In the
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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#57
CIVIL MINUTES - GENERAL
Case No.

CV 11-7664 PSG (FFMx)

Title

Date

March 26, 2012

George Wilson, et al. v. Walgreen Co.

afternoon of Friday March 16, Defendant filed an ex parte application for a protective order and
sanctions. Dkt. # 57. Defendant contends this matter must be heard ex parte “because if heard
on regular notice, Walgreens will suffer immediate and irreparable harm before any hearing on
Walgreens’ motion for protective order could be heard.” Tabacopoulos Decl. ¶ 2.
II.

Legal Standard

The law on ex parte applications is well-settled in this circuit. In order to justify ex parte
relief, the moving party must establish (1) that its cause will be irreparably prejudiced if the
underlying motion is heard according to regular noticed motion procedures, and (2) that it is
without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a
result of excusable neglect. See Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp.
488, 492 (C.D. Cal. 1995).
III.

Discussion

As an initial matter, Plaintiffs’ counsel avers the Facebook ads were removed prior to
Defendant sending its cease and desist letter. DeSario Decl. ¶ 3. Thus, there does not appear to
be any necessity for ex parte relief regarding the Facebook ads.
The sole issue thus becomes whether Defendant is entitled to ex parte relief regarding the
statements on Plaintiffs’ counsel’s website. On this issue, Defendant’s ex parte application fails
because Defendant has not shown it is without fault in creating the crisis requiring ex parte
relief. The statements were placed on the website approximately nine months ago in June 2011.
DeSario Decl. ¶ 3. While Defendant’s counsel represents it “recently” learned of the Facebook
ad, Defendant’s counsel is consipicuously silent as to when it learned of the allegedly misleading
information on Plaintiffs’ counsel’s website. Tabacopoulos Decl. ¶ 6. An ex parte application
must “establish[] 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.” See Mission Power, 883
F. Supp. at 492. By omitting any mention of when Defendant learned of statements placed on
Plaintiffs’ counsel’s website in June 2011, Defendant has not demonstrated why it “should be
allowed to go to the head of the line in front of all other litigants and receive special treatment.”
Id. For the same reasons, Defendant has failed to demonstrate why the Court should not benefit
from the fundamental purpose of the adversary system (i.e., “the best possible presentation of the
merits and demerits of the case on each side”) rather than be forced to consider an opposition
drawn together over a weekend after Defendant filed its ex parte motion on a Friday afternoon.
CV 11-874 (04/11)

CIVIL MINUTES - GENERAL

Page 2 of 3

O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#57
CIVIL MINUTES - GENERAL
Case No.

CV 11-7664 PSG (FFMx)

Title

Date

March 26, 2012

George Wilson, et al. v. Walgreen Co.

See id. at 491. Accordingly, Defendant has not demonstrated entitlement to ex parte relief.
IV.

Conclusion

Based on the foregoing, the Court DENIES Defendant’s ex parte application for a
protective order.
IT IS SO ORDERED.

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