Fox et al v. County of Tulare, et al

Filing 129

ORDER GRANTING defendants' ex parte application to extend the deadline for filing dispositive motions from 10/28/2013 to 30 days following the Court's ruling on plaintiffs' motion to file a second amended complaint. Order signed by Magistrate Judge Sandra M. Snyder on 10/9/2013. (Rooney, M)

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Michael G. Woods, #58683
Deborah A. Byron, #105327
McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
5 River Park Place East
Fresno, California 93720-1501
Telephone:
[phone]
Facsimile:
[phone]

5 Attorneys for Defendants COUNTY OF
TULARE, JULIA LANGLEY, CAROL
6 HELDING and JOHN ROZUM
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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10 PAMELA J. FOX, ON BEHALF OF
11 HERSELF AND AS NEXT FRIEND TO
C.M.R., A MINOR,
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Case No. 1:11-CV-00520 AWI SMS
EX PARTE APPLICATION FOR ORDER
EXTENDING DEADLINE FOR FILING
DISPOSITIVE MOTIONS; AND POINTS
AND AUTHORITIES AND ORDER
THEREON

Plaintiffs,
v.

14 COUNTY OF TULARE, LETICIA
SOTO, RON
15 CASTENEDA, ERICALANGLEY, CAROL
CASTENEDA, JULIA

[NO HEARING REQUIRED]

16 HELDING, JOHN ROZUM, STEVEN D.
ROGERS, and DOES 1-100,
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Defendant.
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EX PARTE APPLICATION
Defendants COUNTY OF TULARE, JULIA LANGLEY, CAROL HELDING and JOHN
ROZUM hereby apply to this Court, for an order extending the deadline for filing dispositive
motions on the grounds that good cause exists for extending the time within which Defendants
may move for summary judgment due to Plaintiffs’ pending Motion to File Second Amended
Complaint.
I.
BACKGROUND STATEMENT
Plaintiff PAMELA FOX, on behalf of herself and minor CMR, filed Complaint for
Damages against COUNTY OF TULARE (“COUNTY”), and County Social Workers and Deputy

MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 RIVER PARK PLACE EAST
FRESNO, CA 93720-1501

EX PARTE APPL ORDER EXTENDING DEADLINE FOR FILING DISPOSITIVE MOTIONS/AUTHORITIES

1 County Counsel on March 24, 2011. Plaintiffs filed First Amended Complaint for Damages on
2 November 15, 2011. Plaintiffs now seek to file Second Amended Complaint for damages adding a
3 new party, Defendant John Lee, based on conduct occurring in his capacity as a Detective for the
4 Tulare County Sheriff’s Department. Neither the original Complaint nor the First Amended
5 Complaint included charging allegations against Detective Lee, or any other officer, based on law
6 enforcement activities, other than claims that Defendant Ron Casteneda, a former officer with the
7 Sheriff’s Department, conspired to deprive Plaintiff of the custody of her daughter. The theory
8 against Detective Lee appears to be that he was negligent in failing to follow basic investigative
9 procedures. See Declaration of Deborah A. Byron (“DAB”), ¶ 3. Because the proposed Second
10 Amended Complaint adds a new Defendant under a new theory of liability, Defendants will
11 vigorously oppose Plaintiffs’ request for leave to amend.
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The Amended Scheduling Conference Order signed by the Honorable Sandra M. Snyder on

13 February 15, 2013, establishes October 7, 2013 as the deadline for filing non-dispositive motions.
14 Plaintiffs filed their motion to amend and supporting documents between the hours of 9:54 p.m.
15 and 11:06 p.m. on October 7, 2013. The statement of counsel re meet and confer efforts was filed
16 on October 8, 2013, after the filing deadline.
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This Court’s Amended Scheduling Conference order establishes October 28, 2013, as the

18 deadline for filing dispositive motions. Defendants intend to file a motion for summary judgment
19 and/or a partial summary judgment in this case.
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Plaintiffs’ Motion to File Second Amended Complaint is set for hearing on November 20,

21 2013. Opposition to the motion is due on November 6, 2013. Therefore, Defendants will be
22 required to move for summary judgment prior to filing opposition to Plaintiffs’ motion to amend
23 and prior to this Court’s ruling on Plaintiffs’ motion. The pleadings provide the framework for a
24 motion for summary judgment under Fed. R. Civ. P. 56. Until the pleadings are finalized, it
25 cannot be determined what particular facts are “material” for purposes of the motion. See Fed. R.
26 Civ. P. 56(a). Defendants will be prejudiced in attempting to identify the facts and issues
27 necessary for resolution by summary judgment, if the pleadings and the parties are uncertain.
28 Consequently, Defendants seek ex parte relief to file motion for summary judgment after this
Court has ruled on Plaintiffs’ motion for leave to amend.
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 RIVER PARK PLACE EAST
FRESNO, CA 93720-1501

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EX PARTE APPL ORDER EXTENDING DEADLINE FOR FILING DISPOSITIVE MOTIONS/AUTHORITIES

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II.

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LAW AND ARGUMENT

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A Request For Extension Of Time To Plead May Be Made By Ex Parte Application.

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A schedule may be modified for good cause and with the Judge’s consent. Fed. R. Civ. P.

5 16(b)(4). An ex parte application is recognized as an appropriate procedure for seeking an
6 extension of time to file a pleading. See Gallo Winery v. Andina Licores S.A., 2006 U.S. Dist.
7 Lexis 20113, *1-2 (E.D. Cal. 2006); Hall v. Placer County Sheriff’s Department, 2013 U.S. Dist.
8 Lexis 114348, *1 (E.D. Cal. 2013); Stewart v. Wachowski, 2005 U.S. Dist. Lexis 46704, *33 (C.D.
9 Cal. 2005).)
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An ex parte motion is proper where the court does not typically need an adversary

11 presentation from the other side in order to make its ruling. See, In Re Intermagnetics America,
12 Inc. (C.D. Cal. 1989) 101 B.R. 191, 193. Here Plaintiffs do not oppose the motion. See DAB
13 Dec. ¶ 8. Legitimate ex parte applications are appropriate where there is some genuine urgency to
14 the matter. Ibid.
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As set forth in the Declaration of Deborah A. Byron filed herewith, Defendants cannot

16 adequately move for summary judgment and/or partial summary judgment at a time when the
17 pleadings are in flux. Plaintiffs’ proposed addition of a new party and new facts to support
18 liability against a detective for negligent investigation of child pornography charges goes well
19 beyond the extant pleadings. Until this Court has ruled on Plaintiffs’ motion to amend, the facts
20 and issues as framed by the pleadings will be uncertain. Extending the period for filing
21 Defendants’ dispositive motion would not prejudice Plaintiffs. Requiring Defendants to file for
22 summary judgment before the opposition to Plaintiffs’ motion is due, would be prejudicial,
23 wasteful of resources, mooted by a ruling in Plaintiffs’ favor on Motion to File Second Amended
24 Complaint, and would essentially create an undue burden on the Court and counsel in connection
25 with summary resolution of this matter.
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Good Cause Exists For Extending The Deadline For Dispositive Motions.

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The moving party should be allowed relief by ex parte motion because Defendants will be

28 irreparably prejudiced if this matter were determined according to regular noticed motion
procedures. See Mission Power Engineering Co. v. Continental Cas. Co. (C.D. Cal. 1995) 883
MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 RIVER PARK PLACE EAST
FRESNO, CA 93720-1501

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EX PARTE APPL ORDER EXTENDING DEADLINE FOR FILING DISPOSITIVE MOTIONS/AUTHORITIES

1 F.Supp. 488, 492. Defendants could not have a motion to modify the scheduling conference order
2 heard before November 6, 2013, even if such a motion was prepared for filing immediately. Most
3 certainly, the matter could not be heard before the deadline for filing motion for summary
4 judgment. Moreover, the order sought by Defendants is more–or-less a routine matter, in that
5 rescheduling motion deadlines is a matter of procedure rather than substance.
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The time period for filing dispositive motions has not yet expired. The Court as well as the

7 parties will benefit from an orderly progression from finalizing of the pleadings to moving for
8 summary judgment. Just as Defendants will be prejudiced by complying with the October 28,
9 2013 filing deadline, given that the pleadings and parties will be uncertain at that time, the Court
10 cannot reasonably determine whether or not there are triable issues of material fact when the facts
11 are uncertain. Moreover, it is prejudicial to Defendants to be in the position of opposing a motion
12 to file an amended complaint while at the same time being required to prepare a substantial motion
13 under Fed. R. Civ. P. 56.
“Good cause” exists for extending the deadline for filing dispositive motions. Given the

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15 approaching deadline for filing motion for summary judgment, it is necessary that Defendants
16 move ex parte to extend the pleading deadline.
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III.

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CONCLUSION

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Trial in this matter is set for March 25, 2014. Allowing Defendants thirty (30) days within

20 which to file a motion for summary judgment following this Court’s ruling on the Motion to file a
21 Second Amended Complaint will not prejudice Plaintiffs or unduly disturb the Court’s scheduling
22 order. It is simply not possible for Defendants to frame a motion for summary judgment at a time
23 when the pleadings are not final. Plaintiffs do not oppose this Ex Parte Application.
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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 RIVER PARK PLACE EAST
FRESNO, CA 93720-1501

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EX PARTE APPL ORDER EXTENDING DEADLINE FOR FILING DISPOSITIVE MOTIONS/AUTHORITIES

For all the reasons set forth above, this Court is respectfully requested to grant Defendants’

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2 Ex Parte Application to extend the deadline for filing dispositive motions from October 28, 2013
3 to thirty (30) days following this Court’s ruling on Plaintiffs’ Motion to File Second Amended
4 Complaint.
5 Dated: October 8, 2013
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McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP

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/s/ Deborah A. Byron
Michael G. Woods
Deborah A. Byron
Attorneys for Defendants COUNTY OF
TULARE, JULIA LANGLEY, CAROL
HELDING and JOHN ROZUM

By:

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ORDER GRANTING EX PARTE APPLICATION

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Defendants having shown good cause for the extension of time to file dispositive motions,

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15 and there being no opposition by Plaintiffs, this Court grants Defendants’ Ex Parte Application and
16 orders the Scheduling Conference Order modified to establish a deadline for filing motion for
17 summary judgment and/or partial summary judgment not later than thirty (30) days following this
18 Court’s ruling on Plaintiffs’ Motion to File Second Amended Complaint.
IT IS SO ORDERED.

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22 IT IS SO ORDERED.
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Dated:

October 9, 2013

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 RIVER PARK PLACE EAST
FRESNO, CA 93720-1501

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EX PARTE APPL ORDER EXTENDING DEADLINE FOR FILING DISPOSITIVE MOTIONS/AUTHORITIES