Yeager v. Cingular Wireless LLC et al

Filing 139

ORDER signed by Judge Kimberly J. Mueller on 3/23/2012 DENYING 137 Request for costs and fees associated with Motions in Limine filed by Charles E. Yeager. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GENERAL CHARLES E. “CHUCK”
YEAGER,

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Plaintiff,

No. CIV S 07- 2517 KJM GGH

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vs.

ORDER

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AT&T MOBILITY, LLC, et al.,
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Defendants.
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On March 5, 2012, defendant AT&T Mobility, LLC moved to strike plaintiff’s

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motions in limine as untimely. (ECF 136.) Local Rule 230 provides that motions must be “set for

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hearing on the motion of the calender of the Judge or Magistrate Judge to whom the action has

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been assigned or before whom the motion is to be heard not less than twenty-eight days after

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service and filing of the motion.” E.D. CAL. LOCAL RULE 230(b). Defendant also suggests

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Federal Rule of Civil Procedure (“Rule”) 6(d) is applicable here. Rule 6(d) provides that where

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service is achieved electronically, “when a party may or must act within a specified time after

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service [], 3 days are added after the period would otherwise expire under Rule 6(a).” See FED.

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R. CIV. P. 6(d). Here, service was completed electronically. Reading Local Rule 230 and Rule

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6(d) in conjunction, defendant reasons “when motion papers are filed and served electronically,

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they must be filed and served three days earlier than the rules otherwise provide.” (ECF 136 at
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2.) This reading is incorrect. Plaintiff has complied with the local rule by filing and serving its

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motions twenty-eight days prior to the hearing. See FED. R. CIV. P. 5(b)(2)(E) & (d)(3). The

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filing and service dates are calculated by reference to the operative hearing date, not the date a

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document is served. See generally E.D. CAL. LOCAL RULE 230. As such, Rule 6(d) is

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inapplicable.

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Notwithstanding the foregoing, plaintiff’s request for costs and fees associated

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with the motion is denied. In the future, however, failures to fully meet and confer and to

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exhaust efforts to resolve differences of the sort addressed by this order are not likely to met with

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such equanimity.

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IT IS SO ORDERED.
DATED: March 23, 2012.

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UNITED STATES DISTRICT JUDGE

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