Asturias et al v. Nationstar Mortgage LLC et al
Filing
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ORDER by Judge Richard Seeborg striking plaintiffs' ex parte motion for relief from the judgment and granting the motion for extension of time to file a notice of appeal. (cl, COURT STAFF) (Filed on 5/23/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ELENA ASTURIAS, et al.,
Case No. 15-cv-03861-RS
Plaintiffs,
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United States District Court
Northern District of California
v.
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NATIONSTAR MORTGAGE LLC, et al.,
Defendants.
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ORDER STRIKING PLAINTIFFS' EX
PARTE MOTION FOR RELIEF FROM
THE JUDGMENT AND GRANTING
THE MOTION FOR EXTENSION OF
TIME TO FILE A NOTICE OF APPEAL
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On April 22, 2016, plaintiffs’ Second Amended Complaint was dismissed with prejudice
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and judgment was entered in favor of defendants. Since then, plaintiffs have retained new counsel
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who has endeavored without success to obtain the prior counsel’s files and information related to
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the case. The deadline for plaintiffs to file a notice of appeal is May 23, 2016. Plaintiffs move
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“ex parte” for relief from the judgment and for an extension of time to file a notice of appeal.
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Local Rule 7-2(a) requires parties to notice for hearing all motions unless otherwise
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permitted by court order, and thus ex parte motions are not permitted. Plaintiffs did not properly
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notice this motion, and therefore their papers are stricken.
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However, plaintiffs will have an opportunity to follow proper procedure. Federal Rule of
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Appellate Procedure 4(a)(5)(A) permits district courts to extend the time to file a notice of appeal
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if the party seeking the extension “moves no later than 30 days after the time prescribed” and “that
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party shows excusable neglect or good cause.” Plaintiffs’ new counsel has submitted a declaration
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detailing the difficulties she has encountered trying to coordinate with plaintiffs’ prior counsel,
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thereby demonstrating good cause for the extension. Accordingly the motion to extend time to file
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the notice of appeal is extended forty-five days. That time should allow plaintiffs properly to
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notice their motion for relief from the judgment. They are reminded that federal law—not state
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law—governs their request, and their argument should accordingly focus on the applicable federal
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procedural rules.
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IT IS SO ORDERED.
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Dated: May 23, 2016
______________________________________
RICHARD SEEBORG
United States District Judge
United States District Court
Northern District of California
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<< SHORT ORDER TITLE >>
CASE NO. 15-cv-03861-RS
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