AF Holdings LLC v. Doe

Filing 112

ORDER by Magistrate Judge Nandor J. Vadas denying 111 Ex Parte Application (njvlc2, COURT STAFF) (Filed on 9/12/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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AF HOLDINGS LLC,

Case No. 12-cv-02396-EMC (NJV)

Plaintiffs,
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v.

ORDER DENYING SECOND EX PARTE
APPLICATION

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JOE NAVASCA,

Re: Dkt. No. 111

Defendants.
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United States District Court
Northern District of California

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Plaintiff filed a second ex parte application asking to submit -- in camera -- an affidavit

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explaining why Mark Lutz did not appear at the August 28, 2013 hearing. Doc. No. 111.

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Whereas the first application sought to file under seal a declaration addressing both the reasons for

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Lutz’s absence and the substantive matters the court ordered AF to address at the hearing (Doc.

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No. 108), Plaintiff now only wants to explain why Lutz was absent. Plaintiff “is informed and

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believes that Mr. Lutz was prevented from boarding his aircraft to travel from Miami Beach,

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Florida to San Francisco California for reasons that were completely unforeseeable to him at the

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time and entirely beyond his control. Mr. Lutz has informed Plaintiff that he wishes to explain to

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the Court the reasons for his absence, but the reasons are of a very sensitive nature and would

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expose Mr. Lutz to undue scrutiny.” Id. Plaintiff’s vague allegations of “sensitivity,” the fact that

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Plaintiff makes this representation on information and belief, and Plaintiff’s litigation strategy to

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date, all suggest that Lutz’s absence and his attempt to excuse it after the fact amount to

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gamesmanship. Moreover, Plaintiff’s counsel did not request a continuance of the evidentiary

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hearing when Lutz failed to appear. Finally, Northern District Local Rule 79-5 sets forth the

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procedure litigants must follow, and the standards they must meet, to file documents under seal;

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Plaintiff’s application does not follow this Local Rule.

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For these reasons, Plaintiff’s second ex parte application is denied. If Lutz wants to

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explain his absence, he may file a declaration on the record or proceed according to Local Rule

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79-5.

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IT IS SO ORDERED.

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Dated: September 12, 2013
______________________________________
NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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