Schaffner v. Crown Equipment Corporation

Filing 150

ORDER by Judge ARMSTRONG striking 142 Motion to Continue; denying 146 Ex Parte Application (lrc, COURT STAFF) (Filed on 12/5/2011)

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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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FRANK SCHAFFNER,

Case No: C 09-00284 SBA

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Plaintiff,
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vs.
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CROWN EQUIPMENT CORPORATION dba
12 CROWN LIFT TRUCKS; NORTH WEST
HANDLING SYSTEMS, INC.,
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Defendants.
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ORDER DENYING PLAINTIFF’S EX
PARTE APPLICATION FOR ORDER
SHORTENING TIME FOR
HEARING ON MOTION TO
CONTINUE TRIAL DATE
Dkt. 142, 146

15 NORTH WEST HANDLING SYSTEMS, INC.,
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Cross-Claimant,
vs.

18 CROWN EQUIPMENT CORPORATION dba
CROWN LIFT TRUCKS; NORTH WEST
19 HANDLING SYSTEMS, INC.,
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Cross-Defendants.

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On November 21, 2011, Plaintiff filed a Motion to Continue the Trial Date along

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with an Ex Parte Application to Shorten Time for Hearing of Motion to Continue Trial

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Date. Dkt. 142, 146.1 In his application to shorten time, Plaintiff seeks to have his motion

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to continue trial heard on November 23, 2011—in other words, on two days notice.

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The trial date is February 22, 2012. Dkt. 128.

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Plaintiff’s ex parte application is wholly improper. Under Civil Local Rule 6-3(c),

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Defendants have four days from the filing of an application for an order shortening time to

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file a response. In addition, a party opposing a noticed motion has two weeks to file its

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response thereto. Id. 7-3(a). By seeking to have his motion to continue the trial date heard

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on two days notice, Plaintiff’s application effectively deprives Defendants of the

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opportunity to respond to either the ex parte application or the motion.

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The above notwithstanding, Plaintiff’s ex parte application for an order shortening

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time is unnecessary because Plaintiff should not have filed a noticed motion to continue the

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trial date in the first instance. Civil Local Rule 6-1 provides:

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A Court order is required for any enlargement or shortening of
time that alters an event or deadline already fixed by Court
order or that involves papers required to be filed or lodged with
the Court (other than an initial response to the complaint). A
request for a Court order enlarging or shortening time may be
made by written stipulation pursuant to Civil L.R. 6-2 or motion
pursuant to Civil L.R. 6-3. Any stipulated request or motion
which affects a hearing or proceeding on the Court’s calendar
must be filed no later than 14 days before the scheduled event.

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Civ. L.R. 6-1(b) (emphasis added). Thus, to the extent Plaintiff desires to continue the trial

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date—i.e., “an event … fixed by the Court,” he should have filed a motion to change time

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under Rule 6-3, not a noticed motion under Civil Local Rule 7-2. The Court therefore

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strikes Plaintiff’s procedurally improper motion to continue trial date without prejudice to

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resubmitting said motion in accordance with Rule 6-3. See Grove v. Wells Fargo Fin. Cal.,

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Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding district court’s denial of motion to tax

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costs which was not in compliance with the court’s local rules). Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

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Plaintiff’s Ex Parte Application to Shorten Time for Hearing of Motion to

Continue Trial Date is DENIED.
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Plaintiff’s Motion to Continue Trial Date, Dkt. 142, including supporting

exhibits, is STRICKEN from the record.
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This Order terminates Docket 142 and 146.

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IT IS SO ORDERED.
Dated: December 2, 2011

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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