Hollyway Cleaners & Laundry Company Inc et al v. Central National Insurance Company of Omaha Inc et al

Filing 16

ORDER DENYING plaintiffs EX PARTE APPLICATION requesting the Court continue the expert-disclosure deadlines. In the alternative, Plaintiffs request that the Court exclude all evidence from one of Central National Insurance Company of Omahas experts 12 by Judge Otis D. Wright, II . (lc). Modified on 5/28/2014 (lc).

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United States District Court
Central District of California

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HOLLYWAY CLEANERS &

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Case No. 2:13-cv-07497-ODW(Ex)

LAUNDRY COMPANY, INC., et al.,
Plaintiffs,

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APPLICATION [12]

v.

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ORDER DENYING EX PARTE

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CENTRAL NATIONAL INSURANCE

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COMPANY OF OMAHA, INC., and

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DOES 1–30,
Defendants.

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On May 23, 2014, Plaintiffs filed an Ex Parte Application for Extension of

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Time. (ECF No. 12.) Plaintiffs request that the Court continue the expert-disclosure

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deadlines. In the alternative, Plaintiffs request that the Court exclude all evidence

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from one of Central National Insurance Company of Omaha’s (“CNICO”) experts.

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On May 27, 2014, CNICO opposed the ex parte application. (ECF No. 14.)

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To justify ex parte relief, the moving party must demonstrate that it (1) will be

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irreparably harmed if ex parte relief is not granted and (2) was without fault in

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creating the crisis requiring ex parte relief. Mission Power Eng’g Co. v. Cont’l Cas.

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Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). This Court makes clear to all parties

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appearing before it that ex parte practice is discouraged. (See Scheduling and Case

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Management Order, ECF No. 94.)

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When a district court sets a deadline, a party must present “good cause” for

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modifying the schedule. Fed. R. Civ. P. 16(b)(4). The Ninth Circuit has held that this

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standard “primarily considers the diligence of the party seeking the extension.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal

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quotation marks omitted).

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First, Plaintiffs request a two-week extension of time for all parties to designate

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and provide reports for their experts. Plaintiffs assert that they did not make their

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expert disclosures by the deadline set by the Court because they believed they had a

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stipulation with CNICO to extend the disclosure deadline.

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The Court is unable to conclude that Plaintiffs are “without fault in creating the

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

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neglect.” Mission Power Eng’g, 883 F. Supp. at 492. The expert-disclosure deadline

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was May 19, 2014.

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Plaintiffs’ assertion that because expert disclosures are not filed with the Court

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“Plaintiff did not believe that the Court’s approval of the stipulation was necessarily

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required or, [sic] that if it was required it had to be obtained before the deadline

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passed” is not persuasive.

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responsible for setting the case schedule, and it is the Court—not the parties—that is

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vested with the sole discretion to revise those deadlines. Any party seeking to adjust

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those deadlines must present good cause for such a modification. Fed. R. Civ. P.

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16(b)(4). Agreements built on emails and handshakes mean little until reduced to a

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signed stipulation filed with and approved by the Court.

No stipulation was filed with the Court prior to this date.

(Appl. 4.)

It is the Court—not the parties—that is

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In the alternative, Plaintiffs ask the Court to preclude CNICO from using “any

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information, opinions, testimony, documents or other evidence from its expert

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witness, John Sheller, on any motion, or at any hearing, trial, or other proceeding in

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this matter.” (Appl. 2.) Plaintiffs argue that while CNICO timely designated its

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experts, CNICO’s disclosures were deficient because it did not provide Plaintiffs with

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either of their experts’ reports.

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An ex parte application is not the proper vehicle by which to request such relief.

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Essentially, Plaintiffs ask the Court to impose a discovery sanction against CNICO.

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Such a request is more properly the province of a motion in limine; there is simply no

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reason that a regularly noticed motion is inadequate to provide the relief sought. If, in

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fact, CNICO’s expert disclosure was deficient the Court will apply the same stringent

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application of the Federal Rules of Civil Procedure and the Court’s local rules to the

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motion to exclude the experts’ reports.

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Plaintiffs’ Ex Parte Application is DENIED. (ECF No. 12.) The parties are

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strongly encouraged to work together to resolve discovery-related issues and

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cautioned to exercise discretion in seeking ex-parte relief for such matters.

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IT IS SO ORDERED.

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May 27, 2014

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OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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