Koussa v. Yeung et al

Filing 15

ORDER by Magistrate Judge Jacqueline Scott Corley denying 11 Motion to Dismiss; denying 14 Ex Parte Application. (ahm, COURT STAFF) (Filed on 11/22/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAMELA KOUSSA,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-05137-JSC

v.
MING YEUNG, et al.,
Defendants.

ORDER RE: MOTION TO DISMISS
AND EX PARTE APPLICATION TO
STAY ACTION FOR 30 DAYS
Re: Dkt. No. 11

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Plaintiff Pamela Koussa brings this action against Defendants Ming Yeung, Jia Yeung, and

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Leonicio Perez Santiago for disability discrimination in connection with access barriers she

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encountered at the Pup Hut, a restaurant in Richmond, California. On November 7, 2016,

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Defendants Ming Yeung and Jia Yeung filed a notice of motion to dismiss the complaint in its

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entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 11.) They noticed the

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motion for January 19, 2016 and represented that the “Memorandum of Points and Authorities,

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declaration, and supporting documents shall be filed in due course within 35 days of the date of

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the hearing set forth above.” (Id. at 2.) Plaintiff has since filed an objection to the motion to

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dismiss because, to date, Defendants still have not filed their memorandum of points and

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authorities. (Dkt. No. 13.)

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Local Rule 7-2(b) requires parties to file “[i]n one filed document . . . the “notice of

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motion” . . . and “the points and authorities in support of the motion[.]” Defendants’ failure to

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comply with the Local Rule leaves Plaintiff unable to meaningfully respond to the motion and

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renders the motion procedurally improper, which alone is sufficient to deny the motion. See Tri-

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Valley CARES v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a motion

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as the result of a failure to comply with local rules is well within a district court’s discretion.”);

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see, e.g., Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding

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district court’s denial of motion to tax costs which was not in compliance with the court’s local

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rules).

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In response to Plaintiff’s motion, instead of filing the memorandum of points and

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authorities, Defendants have filed an ex parte application to stay this action for 30 days. (Dkt. No.

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14.) This application is also procedurally improper as it fails to cite a statute, Federal Rule, local

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rule or Standing Order that authorizes filing an ex parte motion in these circumstances. See N.D.

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Cal. Civ. L.R. 7-10. The Court nevertheless considers the application, in which Defendants

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concede that Plaintiff’s objection is well-taken and state that they “intend to withdraw the motion
and refile[.]” (Dkt. No. 14 ¶ 2.) Defendants seek to stay the case until December 21, 2016 and

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United States District Court
Northern District of California

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request an extension of time to file the motion to dismiss. The Court declines to stay the case.

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But because this is Defendants’ first request for an extension of time to respond to the complaint,

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the Court will grant an extension.

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Lastly, Defendants attached to their ex parte application a letter from Plaintiff’s counsel to

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Defendant Ming Yeung regarding failure to answer the complaint and the possibility of default

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entered against him. The Court reminds the parties not to engage in ex parte communication with

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represented parties.

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Accordingly, the Court DENIES Defendants’ motion to dismiss without prejudice to

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refiling in compliance with the Local Rules. The Court DENIES Defendants’ ex parte application

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to stay but grants Defendants’ request for an extension of time to respond to the complaint.

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Defendants shall file an answer or motion to dismiss by December 21, 2016.

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This Order terminates Docket Nos. 11 and 14.

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IT IS SO ORDERED.

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Dated: November 22, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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