Entrepreneur Media, Inc.v. Smith

Filing 72

ORDER signed by Magistrate Judge Edmund F. Brennan on 07/19/11 ORDERING that dft's 67 Ex Parte Application for Order Shortening Time and Motion for 09:30 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan and dft has an additio nal 90 days to respond to the subpoena for documents referenced in his Motion; the hearings on the 29 , 37 Motions to Quash are CONTINUED to 11/16/11 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan; by 11/02/11, plf shal l file a brief indicating whether the subpoena to Chase will be withdrawn as moot, and if not, indicating why the motions to quash the subpoena should not be granted; the brief may also address the motions for a protective order and/or for sanctions; by 11/09/11, dft and/or Mix shall file a response to the plf's brief; w/i 7 days, plf's counsel shall serve this order on Chase; the hearing on dft's 65 Motion to Quash and Motion for Sanctions is CONTINUED to 08/31/11 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ENTREPRENEUR MEDIA, INC.,
Plaintiff,

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No. MISC. S-10-55 JAM EFB

vs.
SCOTT SMITH dba
ENTREPRENEURPR,

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Defendant.
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ORDER
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This miscellaneous action, in which defendant is pro se, was referred to the undersigned

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under Eastern District of California Local Rule 302(a). On May 4, 2011, the court heard (1)

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plaintiff’s motion to appoint a receiver to sell certain domain names owned and/or controlled by

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the judgment debtor defendant, Dckt. No. 24; (2) defendant and third party Karen Mix’s motions

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to quash, for a protective order, and for sanctions, Dckt. Nos. 29, 37; and (3) defendant’s motion

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to stay this action pending appeal and/or for a temporary restraining order, Dckt. No. 53. At the

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May 4 hearing, the court indicated that it would deny plaintiff’s motion to appoint a receiver and

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defendant’s motion for a stay, and would continue the hearing on defendant and Mix’s motions

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to quash, for a protective order, and for sanctions to June 22, 2011, so that it could be heard after

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the judgment debtor examination of Smith, which was then scheduled to occur on May 18, 2011.

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See Dckt. No. 40. However, after the hearing on May 4, defendant filed a motion for a 60 day
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extension of the May 18 judgment debtor examination and his deadline for responding to a

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subpoena for documents issued by plaintiff. Dckt. No. 60.

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Therefore, on May 5, 2011, the undersigned issued an order (1) denying plaintiff’s

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motion to appoint a receiver to sell certain domain names owned and/or controlled by defendant,

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Dckt. No. 24, without prejudice; (2) denying defendant’s motion for a stay pending appeal

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and/or for a temporary restraining order, Dckt. No. 53; (3) granting defendant’s motion for an

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extension, Dckt. No. 60; (4) continuing the May 18, 2011 judgment debtor examination to July

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20, 2011 at 9:30 a.m. in Courtroom No. 24 and providing defendant an additional 60 days to

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respond to the subpoena for documents referenced in his request for an extension; (5) continuing

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defendant and third party Karen Mix’s motions to quash the subpoena issued by plaintiff to

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Chase Bank, N.A. (“Chase”) on December 30, 2010 regarding Chase account number

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xxxx-xxxx-3620, for a protective order, and for sanctions, Dckt. Nos. 29 and 37, to August 24,

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2011 at 10:00 a.m. in Courtroom No. 24; (6) providing that on or before August 10, 2011,

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plaintiff shall a brief indicating whether the subpoena to Chase will be withdrawn as moot, and if

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not, indicating why the motions to quash the subpoena should not be granted; and (7) providing

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that on or before August 17, 2011, defendant and/or Mix shall file a response to plaintiff’s brief.

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Dckt. No. 61 at 2-3.

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Thereafter, on July 5, 2011, defendant filed a motion to quash a third party subpoena

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issued by plaintiff and a request for sanctions, and noticed the motion for hearing on August 17,

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2011. Dckt. No. 65. Then, on July 13, 2011, defendant filed an ex parte application for an order

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shortening time to hear a second motion to extend defendant’s time to respond to plaintiff’s

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subpoena and to appear for the July 20, 2011 judgment debtor examination. Dckt. No. 67.

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Defendant contends that good cause supports the application to shorten time because allowing

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the debtor examination to occur on July 20, 2011 would cause defendant “substantial and

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irreparable harm, and waste judicial resources due to several factors outside of [defendant’s]

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control.” Id. at 2. Specifically, defendant contends that (1) the attorney defendant believed
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would be able to assist him at the judgment debtor examination “has contracted pneumonia and

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is apparently extremely ill” and that defendant is “unable to adequately determine when and if

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the attorney will still be able to assist [defendant] or if [defendant] will need to obtain alternative

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legal assistance, and [he] may not know for several weeks”; (2) “[a] significant number of

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[defendant’s] documents and computer records may be unavailable until [he] can complete the

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time-consuming and expensive task of updating or trying to replace several computer

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applications that are incompatible with Apple’s current operating system”; (3) defendant

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“recently received a Jury Summons to serve as a trial juror” and when defendant “called the

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Court to discuss possible scheduling conflicts, [he] was advised to appear at Sacramento

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Superior Court by 8:00 a.m. Monday, July 18, 2011 to Thursday, July 21, 2011, or until [he is]

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dismissed as a juror or [is] selected to serve as a trial juror”; and (4) allowing plaintiff to conduct

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the judgment debtor examination before the Court can rule on defendant’s motion to quash and

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motion for sanctions, which is noticed for hearing on August 17, 2011, could have the effect of

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mooting issues in that motion. Id. at 2-3. Defendant therefore requests that the court postpone

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the July 20, 2011 debtor examination and the deadline for defendant to respond to plaintiff’s

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subpoena by ninety days. Dckt. No. 67-1 at 6. Defendant notes that he unsuccessfully sought a

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stipulation from plaintiff to hear the matter on shortened time. Dckt. No. 67 at 3. On July 14,

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2011, plaintiff filed an opposition to defendant’s ex parte application for an extension,

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questioning the legitimacy of each of defendant’s reasons for an extension. Dckt. No. 69.

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Eastern District of California Local Rule 144(e) provides that “[a]pplications to shorten

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time shall set forth by affidavit of counsel the circumstances claimed to justify the issuance of an

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order shortening time [and] will not be granted except upon affidavit of counsel showing a

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satisfactory explanation for the need for the issuance of such an order and for the failure of

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counsel to obtain a stipulation for the issuance of such an order from other counsel or parties in

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the action.” Although this court is unconvinced that each of defendant’s stated reasons for an

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extension justifies such an extension, in light of defendant’s representations regarding the sudden
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illness of the counsel he has obtained to represent him and his representations regarding his need

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for additional time to respond to plaintiff’s subpoena, the ex parte application and request for an

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extension will be granted. Defendant is warned, however, that no further extensions of time will

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be granted absent a showing of substantial cause. Failure to properly plan and schedule for

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meeting this new deadline will not meet that standard.

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Accordingly, IT IS ORDERED that:

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1. Defendant’s application for an order shortening time and defendant’s motion for an

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extension, Dckt. No. 67, are granted.

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2. The July 20, 2011 judgment debtor examination is continued to October 19, 2011 at

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9:30 a.m. in Courtroom No. 24 and defendant has an additional 90 days to respond to the

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subpoena for documents referenced in his request for an extension.

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3. Defendant and third party Karen Mix’s motions to quash the subpoena issued by

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plaintiff to Chase on December 30, 2010 regarding Chase account number xxxx-xxxx-3620, for

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a protective order, and for sanctions, Dckt. Nos. 29 and 37, are continued to November 16, 2011

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at 10:00 a.m. in Courtroom No. 24.

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4. On or before November 2, 2011, plaintiff shall a brief indicating whether the

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subpoena to Chase will be withdrawn as moot, and if not, indicating why the motions to quash

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the subpoena should not be granted. Plaintiff’s brief may also address the motions for a

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protective order and/or for sanctions. The brief shall not exceed fifteen pages.

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5. On or before November 9, 2011, defendant and/or Mix shall file a response to
plaintiff’s brief. The brief(s) shall not exceed fifteen pages.
6. Within seven days of the date of this order, plaintiff’s counsel shall serve a copy of

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this order on Chase.

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7. Defendant’s motion to quash and motion for sanctions, Dckt. No. 65, is continued to

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August 31, 2011 at 10:00 a.m. in Courtroom No. 24. The parties shall file any opposition(s)

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and/or reply briefs in accordance with Local Rule 230.

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SO ORDERED.
Dated: July 19, 2011.

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