Bonvivino Capital LLC v. Morgan Clendenen et al

Filing 67

ORDER by Judge Otis D. Wright, II: denying 66 .defendants ex parte for relief from the Court to exclude the testimony of Bonvivino Capital, LLCs expert witness John A. Hinman. Defendants may raise this issue in a motion in limine, appropriately filed in accordance with the Courts Scheduling and Case Management Order. (lc). Modified on 7/9/2013 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BONVIVINO CAPITAL LLC,

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v.

Plaintiff,

Case No. 2:12-cv-08185-ODW(FFMx)
ORDER DENYING EX PARTE
APPLICATION [66]

MORGAN CLENDENEN; COLD
HEAVEN CELLARS, LLC; and DOES 1–
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Defendants.

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Defendants now seek ex parte relief from the Court to exclude the testimony of

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Bonvivino Capital, LLC’s expert witness John A. Hinman. (ECF No. 66.) They

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argue that Bonvivino designated Hinman as an expert witness on July 3, 2013—three

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months after the March 18, 2013 expert-disclosure deadline.

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Though Defendants’ assertions may be true, their window for filing motions has

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passed; the last day for hearing motions was June 24, 2013. (ECF No. 12.) The relief

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they seek should be addressed in a motion in limine.

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Further, a party seeking ex parte relief must establish that it “is without fault in

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creating the crisis that requires ex parte relief, or that the crisis occurred as a result of

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excusable neglect.” Mission Power Eng’g Co. v. Cont’l Casualty Co., 883 F. Supp.

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488, 492 (C.D. Cal. 1995). Upon review of the record, it appears that Defendants

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delayed production of discovery, albeit in protest to overbroad discovery requests.

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And though Bonvivino cannot be said to be without fault in causing that delay,

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Defendants cannot establish that they are “without fault in creating the crisis.” Id.

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at 492.

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Therefore, Defendants’ Ex Parte Application is DENIED. Defendants may

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raise this issue in a motion in limine, appropriately filed in accordance with the

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Court’s Scheduling and Case Management Order. (ECF No. 12.)

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IT IS SO ORDERED.

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July 9, 2013

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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