Simms v. DNC Parks & Resorts at Tenaya, Inc. et al

Filing 46

Order DENYING Plaintiff's ex parte application for leave to file a first amended complaint, signed by Magistrate Judge Sandra M. Snyder on 3/30/2015. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY SIMMS,

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Plaintiff,

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CASE NO. 1:13-CV-2075 SMS

v.
DNC PARKS & RESORTS AT TENAYA,
INC., a Delaware corporation; DELAWARE
NORTH COMPANIES PARKS &
RESORTS, INC., a Delaware Corporation;
DELAWARE NORTH COMPANIES,
INCORPORATED, a Delaware Corporation;
and DOES 1 - 50 inclusive,

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ORDER DENYING PLAINTIFF’S EX
PARTE APPLICATION FOR LEAVE TO
FILE A FIRST AMENDED COMPLAINT

(Doc. 42)

Defendants.

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Plaintiff Timothy Simms filed the complaint in this matter on December 20, 2013, bringing

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several causes of action arising under California law related to his employment termination, and

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invoking diversity jurisdiction under 28 U.S.C. § 1332. Defendant did not object to federal

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jurisdiction. After discovery was complete, Defendants collectively filed a motion for summary

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judgment, the first substantive order in this matter. The Court ordered supplemental briefing

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regarding subject matter jurisdiction on March 13, 2015. Before the Court is Plaintiff’s ex parte

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application for leave to file a first amended complaint which adds federal claims, or in the

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alternative, an order shortening time for a motion. For the following reasons, the Court finds that

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Plaintiff has not shown good cause for ex parte relief and his application will be denied.

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I.

Discussion
Plaintiff does not specifically address his reason for bringing his request to file an amended

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complaint as an ex parte application and not as a regularly noticed motion. Plaintiff’s ex parte

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application is written as a motion, setting forth the reasons why he should be granted leave to file

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an amended complaint. Plaintiff argues that Defendants will not be substantially prejudiced by the

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amendment, amendment is not sought in bad faith, amendment would not cause undue delay, and

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amendment is not futile. Plaintiff requests, in the alternative, shortened time for hearing on a

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motion for the same relief. Plaintiff seems to argue that he would be irreparably prejudiced if his

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motion for leave to file an amended complaint alleging was heard after Defendants were required

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to submit supplemental briefing regarding subject matter jurisdiction. Plaintiff also mentions

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Defendants’ pending motion for summary judgment, which has been taken under submission, and

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suggests that the order on the MSJ should also address his federal claims.

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Eastern District of California Local Rule 230 requires that a moving party file and serve

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moving papers, and set a hearing date not less than 28 days after service and filing of the motion.

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“Timetables for the submission of responding papers and for the setting of hearings are intended to

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provide a framework for the fair, orderly, and efficient resolution of disputes.” In re

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Intermagnetics America, Inc., 101 Bankr. 191, 193 (C.D. Cal. 1989).

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An ex parte application or motion circumvents these timetables for some urgent or special

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reason why relief may not be had through a regularly noticed motion. “The purpose of […] the ex

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parte motion papers is to establish why the accompanying proposed motion for the ultimate relief

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requested cannot be calendared in the usual manner” and “why the moving party should be

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allowed to go to the head of the line in front of all other litigants and receive special treatment.”

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Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). They will

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only be granted upon a showing that: 1) the evidence must show that the moving party’s cause will

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be irreparably prejudiced if the underlying motion is heard according to regular noticed motion

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procedures; and 2) the moving party must establish that it is without fault in creating the crisis that

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requires ex parte relief, or that the crisis occurred as a result of excusable neglect. Id. “Lawyers

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must understand that filing an ex parte motion […] is the forensic equivalent of standing in a

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crowded theater and shouting, ‘Fire!’ There had better be a fire.” Id.

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In this District, ex parte applications to shorten time will not be granted except upon

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affidavit of counsel showing a satisfactory explanation for the need for the issuance of such an

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order. L. R. 144(e).

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Regrettably, Plaintiff brought his motion for leave to file an amended complaint on an ex
parte basis without any urgent crisis or “fire” warranting his circumvention of the clearly
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established procedural rules. Plaintiff has not explained how he will be irreparably prejudiced if

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his motion is heard according to the regular timetable. The Court fails to see how Plaintiff will be

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irreparably prejudiced if the hearing on his motion was held after the supplemental briefing on

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subject matter jurisdiction is due. Likewise, the pending MSJ and trial date are not satisfactory

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explanations warranting ex parte relief. The Court will hold Defendants’ MSJ in abeyance until

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the issue of subject matter jurisdiction is resolved. If required, the trial date will also be continued.

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Federal jurisdiction is limited and must be established before a matter is properly before the Court.
Thus, Plaintiff’s ex parte application is denied. To be clear, the March 13, 2014 order

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directing supplemental briefing (Doc. 37) remains unaffected.
II.

Order
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s ex parte motion to file a

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first amended complaint is DENIED without prejudice. Should he choose to do so, Plaintiff may

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file a properly noticed motion in accordance with Local Rule 230.

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IT IS SO ORDERED.
Dated:

March 30, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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