In Re Specific Media Flash Cookie Litig.

Filing 5

INITIAL ORDER by Judge James V. Selna Following Filing of Complaint Assigned to Judge Selna. (See Order for details) (db)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

GENEVIVE LA COURT, ET AL,

)
)
Plaintiff(s), )
)
v.
)
)
SPECIFIC MEDIA, INC., ET AL,
)
)
Defendant(s). )
)
)
______________________________ )

CASE NO. SACV 10-1256-JVS(VBKx)
INITIAL ORDER FOLLOWING
FILING OF COMPLAINT ASSIGNED
TO JUDGE SELNA

17
18
19

Important Notice: The Court posts tentative law and motions rulings
to the internet. Please see Section P, below.

20
21

COUNSEL FOR PLAINTIFF SHALL SERVE THIS ORDER ON ALL

22

DEFENDANTS AND/OR THEIR COUNSEL ALONG WITH THE SUMMONS

23

AND COMPLAINT, OR IF THAT IS NOT PRACTICABLE AS SOON AS

24

POSSIBLE THEREAFTER. IF THIS CASE WAS ASSIGNED TO THIS

25

COURT AFTER BEING REMOVED FROM STATE COURT, THE

26

DEFENDANT WHO REMOVED THE CASE SHALL SERVE THIS ORDER

27

ON ALL OTHER PARTIES.

28
Revised January 6, 2010

1
2

This case has been assigned to the calendar of Judge James V. Selna.

3

The intent of this Order is to ensure that this case will proceed so as “to secure [a]

4

just, speedy and inexpensive determination.” (Fed.R.Civ. P., Rule 1.)

5
6

A.

THE COURT’S ORDERS

7

Copies of Judge Selna’s orders that may have specific application to

8
9
10

this case are available on the Central District of California website. See ¶ N.
Those orders include the following:

11
12

(1)

Order Setting Rule 26(f) Scheduling Conference

13

(2)

Order re Civil Jury Trials

14

(3)

Order re Civil Court Trials

15

(4)

Order re RICO Case Statement

16
17

B.

SERVICE OF PLEADINGS

18

Although Fed.R.Civ.P., Rule 4(m) does not require the summons and

19
20

complaint to be served for as much as 120 days, the Court expects that the initial

21

pleadings will be served much sooner than that, and will require plaintiff to show

22

cause before then if it appears that there is undue delay.

23
24

C.

ASSIGNMENT TO A MAGISTRATE JUDGE

25
26

Under 28 U.S.C. § 636, the parties may consent to have a Magistrate

27

Judge preside over all proceedings, including trial. The Magistrate Judges who

28

accept those designations are identified on the Central District’s website, which
Revised January 6, 2010

2

1

also contains the consent form. See ¶ N.

2
3

D.

EX PARTE PRACTICE

4

Ex parte applications are solely for extraordinary relief and should be

5
6

used with discretion. See Mission Power Engineering Company v. Continental

7

Casualty Co., 883 F. Supp. 488 (C. D. Cal. 1995). The Court will generally

8

decide ex parte matters on the papers. Opposition to an ex parte application, if

9

any, should be submitted within 24 hours.

10
11
12

E.

APPLICATIONS AND STIPULATIONS FOR EXTENSIONS
OF TIME

13
14

No stipulations extending scheduling requirements or modifying

15

applicable rules are effective until and unless the Court approves them. Both

16

applications and stipulations must set forth:

17
18

1. The existing due date or hearing date;

19
20

2. Specific, concrete reasons supporting good cause for granting the

21

extension. In this regard, a statement that an extension “will promote settlement”

22

is insufficient. The requesting party or parties must indicate the status of ongoing

23

negotiations: Have written proposals been exchanged? Is counsel in the process of

24

reviewing a draft settlement agreement? Has a mediator been selected?

25
26
27

3. Whether there have been prior requests for extensions, and
whether these were granted or denied by the Court.

28
Revised January 6, 2010

3

F.

1

TRO’S AND INJUNCTIONS

2

Parties seeking emergency or provisional relief shall comply with

3
4

F.R.Civ.P., Rule 65 and Local Rule 65. The Court will not rule on any application

5

for such relief for at least 24 hours after the party subject to the requested order

6

has been served; such party may file opposing or responding papers in the interim.

7
8

G.

9

CASES REMOVED FROM STATE COURT

10
11

All documents filed in state court, including documents appended to

12

the complaint, answers and motions, must be refiled in this Court as a supplement

13

to the Notice of Renewal, if not already included. See 28 U.S.C. § 1447(a),(b). If

14

the defendant has not yet answered or moved, the answer or responsive pleading

15

filed in this Court must comply with the Federal Rules of Civil Procedure and the

16

Local Rules of the Central District. If before the case was removed a motion was

17

pending in state court, it must be re-noticed in accordance with Local Rule 7.

18

H.

19

STATUS OF FICTITIOUSLY NAMED DEFENDANTS

20

This Court intends to adhere to the following procedures where a matter

21
22

is removed to this Court on diversity grounds with fictitiously named defendants.

23

(See 28 U.S.C. §§ 1441(a) and 1447.)

24

1.

25

Plaintiff is normally expected to ascertain the identity of and serve

26

any fictitiously named defendants within 120 days of the removal of the action to this

27

Court.

28
Revised January 6, 2010

4

2.

1

If plaintiff believes (by reason of the necessity for discovery or

2

otherwise) that fictitiously named defendants cannot be fully identified within the

3

120-day period, an ex parte application requesting permission to extend that period

4

to effectuate service may be filed with this Court. Such application shall state the

5

reasons therefor, and may be granted upon a showing of good cause. The ex parte

6

application shall be served upon all appearing parties, and shall state that appearing

7

parties may comment within seven (7) days of the filing of the ex parte application.

8

3.

9

If plaintiff desires to substitute a named defendant for one of the

10

fictitiously named parties, plaintiff first shall seek to obtain consent from counsel

11

for the previously-identified defendants (and counsel for the fictitiously named

12

party, if that party has separate counsel). If consent is withheld or denied, plaintiff

13

may apply ex parte requesting such amendment, with notice to all appearing parties.

14

Each party shall have seven calendar days to respond. The ex parte application and

15

any response should comment not only on the substitution of the named party for a

16

fictitiously named defendant, but on the question of whether the matter should

17

thereafter be remanded to the Superior Court if diversity of citizenship is destroyed

18

by the addition of the new substituted party. See U.S.C. § 1447(c), (d).

19
20

I.

BANKRUPTCY APPEALS

21

Counsel shall comply with the ORDER RE PROCEDURE TO BE

22
23

FOLLOWED IN APPEAL FROM BANKRUPTCY COURT issued at the time the

24

appeal is filed in the District Court.

25
26

J.

MOTIONS UNDER FED.R.CIV.P., Rule 12

27
28
Revised January 6, 2010

5

Many motions to dismiss or to strike could be avoided if the parties

1
2

confer in good faith (as they are required to do under L.R. 7-3), especially for

3

perceived defects in a complaint, answer or counterclaim which could be corrected

4

by amendment. See Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996) (where a

5

motion to dismiss is granted, a district court should provide leave to amend unless it

6

is clear that the complaint could not be saved by any amendment). Moreover, a

7

party has the right to amend his complaint “once as a matter of course at any time

8

before a responsive pleading is served.” Fed.R.Civ.P., Rule 15(a). A 12(b)(6)

9

motion is not a responsive pleading and therefore plaintiff might have a right to

10

amend. See Nolen v. Fitzharris, 450 F.2d 958, 958-59 (9th Cir. 1971); St.

11

Michael’s Convalescent Hospital v. California, 643 F.2d 1369, 1374 (9th Cir.

12

1981). And even where a party has amended his Complaint once or a responsive

13

pleading has been served, the Federal Rules provide that leave to amend should be

14

“freely given when justice so requires.” F.R.Civ.P., Rule 15(a). The Ninth Circuit

15

requires that this policy favoring amendment be applied with “extreme liberality.”

16

Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).

17

These principles require that counsel for the plaintiff should carefully

18
19

evaluate the defendant’s contentions as to the deficiencies in the complaint, and that

20

in many instances the moving party should agree to any amendment that would cure

21

a curable defect.

22

The moving party shall attach a copy of the challenged pleading to the

23
24

Memorandum of Points and Authorities in support of the motion.

25

The foregoing provisions apply as well to motions to dismiss a

26
27

counterclaim, answer or affirmative defense, which a plaintiff might contemplate

28

bringing.
Revised January 6, 2010

6

K.

1

REQUIREMENTS FOR BRIEFS

2

In addition to the requirements in Local Rule 11, the Court requires the

3
4

following for all briefs:

5

1. No footnote shall exceed 5 lines. The Court strongly discourages

6
7

the use of extensive footnotes as a subterfuge to avoid page limitations in the Local

8

Rules.

9

2. All footnotes shall be in the same type size as text. See Local Rule

10
11

11-3.1.1.

12

3. Each case cited shall include a jump cite to the page or pages where

13
14

the relevant authority appears (e.g., United States v. Doe, 500 U. S. 1, 14, 17

15

(1997)).

16
17

Failure to follow these requirements may result in rejection of a brief for correction.

18
19

L.

LEAD COUNSEL

20
21

Lead counsel shall appear on all dispositive motions, scheduling

22

conferences, and settlement conferences. The Court does not entertain special

23

appearances; only counsel of record may appear.

24
25

M. COURTESY COPIES

26
27
28

A courtesy copy of all electronically filed pleadings shall be delivered
to Judge Selna’s courtesy copy drop on the tenth floor at the rear of the elevator
Revised January 6, 2010

7

1

lobby by noon the day following filing. Failure to make timely delivery of the

2

courtesy copies may result in a delay in hearing a motion or ordering the

3

matter off calendar.

4
5

N. ELECTRONIC COPIES

6

When the Court requires an electronic copy of a document (e.g., with

7
8

proposed jury instructions), a copy shall be submitted at time of filing in one the

9

following manners: providing a copy on a disk, CD, or thumb drive in a labeled

10

envelope and lodged with the clerk; or by e-mailing a copy to the Court Room

11

Deputy ([e-mail]). Regardless of media, the document

12

should be formatted in WordPerfect9 or higher.

13
14

O.

WEBSITE

15

Copies of this Order and other orders of this Court are available on the

16
17

Central District of California’s website, at “www.cacd.uscourts.gov” at Judge

18

Selna’s home page located under “Judge’s Procedures and Schedules.”

19
20

P.

TENTATIVES–DAY OF HEARING AND WEB POSTING

21
22

The Court attempts to issue tentative rulings on each motion. Tentatives will

23

be posted on the Court’s website: www.cacd.uscourts.gov/. From the home page,

24

click on “Judges’ Procedures and Schedules” in the left column. From the list, click

25

on “Hon. James V. Selna,” which will take you to Judge Selna’s page. Click on the

26

red notice in the upper left: “Click here to view Tentative Rulings.” Then click on

27

the desired ruling which comes up in a .pdf file which can be read with an Adobe

28

Acrobat reader. Judge Selna attempts to post tentatives by late Friday afternoon
8

1

preceding the hearing date. Hard copies of tentatives will also be available from the

2

clerk approximately 15 minutes before the hearing.

3

The Court thanks counsel and the parties for their anticipated

4
5

cooperation.

6
7

IT IS SO ORDERED.

8
9
10
11

Dated: August 25, 2010
____________________________
James V. Selna
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9