The Mitchell Law Group v. OCC Venture LLC et al

Filing 97

ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR RELIEF FROM ORDER AND APPLICATION TO FILE OPPOSITION TO SUMMARY JUDGMENT MOTION; SETTING BRIEFING SCHEDULE AND HEARING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. No later than June 23, 20 10, plaintiffs shall file an opposition that conforms to the requirements set forth in the Local Rules of this District. No later than July 2, 2010, defendants shall file any reply. Unless the parties are hereafter notified to the contrary, the hearing on defendants' motion shall be on July 16, 2010, at 9:00 a.m. Signed by Judge Maxine M. Chesney. (mmclc1, COURT STAFF) (Filed on 6/14/2010)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is plaintiffs' "Ex Parte Application for Relief from Order and Application to File Opposition to Summary Judgment Motion," filed May 28, 2010. Defendants OCC Venture LLC and Shorenstein Realty Services, L.P. have filed opposition thereto. Having read and considered the papers filed in support of and in opposition to the application, the Court rules as follows. In support of the application, plaintiffs submit the declaration of their counsel, who states therein she had delegated to her then assistant the calendaring of the date on which opposition to defendants' motion was due, and that said assistant failed to read the applicable Civil Local Rule. Although a failure to "read an applicable rule," here, Civil Local Rule 7-3(a), has been characterized as "one of the least compelling excuses that can be offered," see Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004), in this instance, the v. OCC VENTURE LLC, et al., Defendants. / THE MITCHELL LAW GROUP, et al., Plaintiffs, No. C-09-3466 MMC ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR RELIEF FROM ORDER AND APPLICATION TO FILE OPPOSITION TO SUMMARY JUDGMENT MOTION; SETTING BRIEFING SCHEDULE AND HEARING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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delay in court proceedings occasioned by counsel's assistant's oversight is minimal, defendants have failed to identify any prejudice they would suffer if plaintiffs were allowed to file a late opposition, and there is no showing plaintiffs have acted or are acting in bad faith. See id. at 858-60 (holding where plaintiff failed to file timely notice of appeal after plaintiff's counsel relied on paralegal who had "negligently" misinterpreted applicable federal rule, trial court did not err in affording plaintiff leave to file untimely notice of appeal where all other "factors militate[d] in favor of excusability"). Accordingly, the application is hereby GRANTED. In light of the above ruling, the Court sets the following schedule: 1. No later than June 23, 2010, plaintiffs shall file an opposition that conforms to the requirements set forth in the Local Rules of this District.1 2. No later than July 2, 2010, defendants shall file any reply. 3. Unless the parties are hereafter notified to the contrary, the hearing on defendants' motion shall be on July 16, 2010, at 9:00 a.m. IT IS SO ORDERED.

Dated: June 14, 2010

MAXINE M. CHESNEY United States District Judge

In conjunction with the instant application, plaintiffs have submitted a "proposed" opposition that exceeds the twenty-five page limit set forth in the Local Rules of this District. See Civil L.R. 7-3(a) (providing "opposition to a motion" may "not exceed 25 pages of text"). Accordingly, plaintiffs may not file their opposition in the form proposed. 2

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