Kremen v. Cohen et al

Filing 152

ORDER by Judge Lucy H. Koh denying 59 Motion to Quash; denying 59 Motion for Referral to the Court's Standing Committee of Professional Conduct and Motion Requiring Plaintiff to Post a Five Million Dollar Bond; denying 64 Motion for Notification of Fraud Upon the Court. (lhklc3S, COURT STAFF) (Filed on 9/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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GARY KREMEN,

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Plaintiff,
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v.
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MICHAEL JOSEPH COHEN, an individual; and )
FNBPAY CORPORATION, an Arizona
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corporation,
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Defendants.
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Case No.: 5:11-CV-05411-LHK
ORDER DENYING DEFENDANT’S
MISCELLANEOUS MOTIONS
(re: dkt. #59, 64)

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Plaintiff Gary Kremen (“Plaintiff”) filed this action on November 8, 2011, under

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California’s Uniform Fraudulent Transfer Act (“UFTA”), Cal. Civ. Code §§ 3439.04, 3439.05,

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3439.07, 3440, against Defendants Michael Joseph Cohen (“M. Cohen”) and FNBPay Corporation

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(“FNBPay”), a corporation incorporated under the laws of the State of Arizona (collectively

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“Defendants”). See ECF No. 1 (“Compl.”). On December 2, 2011, Plaintiff filed an ex parte

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motion seeking a temporary restraining order (“TRO”). The Court granted the motion on

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December 7, 2011, and set a briefing schedule and a January 5, 2012 hearing on Plaintiff’s motion

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for a preliminary injunction. See ECF Nos. 16, 30.

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On December 20, 2011, Defendant M. Cohen filed an opposition to Plaintiff’s motion for a

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preliminary injunction. See ECF No. 38. On December 27, 2011, Defendant M. Cohen filed,

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without leave of the Court, a “Supplemental Brief on Michael J. Cohen’s (a) Opposition to

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Plaintiff’s Motion for a Preliminary Injunction and (b) Michael J. Cohen’s Motion Under Rule 12.”
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Case No.: 5:11-CV-05411-LHK
ORDER DENYING DEFENDANT’S MISCELLANEOUS MOTIONS

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ECF Nos. 59, 60, 61. M. Cohen’s unauthorized supplemental brief was filed in contravention of

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the Civil Local Rules, and was therefore disregarded in the Court’s ruling on the relevant motions.

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See Civ. L.R. 7-3(a), (d). In that same filing, M. Cohen also noticed for January 5, 2012, a: (1)

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Motion to Quash Service on Both the Subpoena and the Request for Production of Documents and

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His Request for Sanctions; (2) Motion for Referral to the Court’s Standing Committee of

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Professional Conduct and His Request for Court Ordered Sanctions; and (3) Motion Requiring

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Plaintiff Gary Kremen’s [sic] to Post a Five Million Dollar Bond Pursuant to California Civil Code

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of Procedures § 1030.” ECF Nos. 59, 60, 61. This portion of the filing, too, was procedurally

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defective. Under the Civil Local Rules, all motions must be filed, served and noticed in writing for

United States District Court
For the Northern District of California

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hearing not less than 35 days after service of the motion. Civ. L. R. 7-2(a). M. Cohen filed these

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motions on December 27, 2012, and noticed them for hearing just nine days later. Plaintiff never

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filed an opposition, and M. Cohen never filed a reply. Accordingly, M. Cohen’s motions are

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DENIED without prejudice.

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On January 3, 2012, M. Cohen filed another “Ex Party [sic] Motion for Notification of

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Fraud Upon the Court and His Second Supplemental Reply Brief by Michael J. Cohen on

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss for Lack of Jurisdiction, Improper Venue

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and Insufficient Service of Process or in the Alternative to Transfer to the District of Arizona.”

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ECF Nos. 64, 65. This filing, too, was done without leave of the Court, in violation of Civil Local

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Rules 7-3(a), 7-3(d), and 7-2(a). Moreover, M. Cohen’s ex parte motion for notification of fraud

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upon the Court does not meet the requirements for ex parte motions under Civil Local Rule 7-10.

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Accordingly, M. Cohen’s ex parte motion for notification of fraud upon the Court is likewise

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DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: September 6, 2012

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LUCY H. KOH
United States District Judge

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Case No.: 5:11-CV-05411-LHK
ORDER DENYING DEFENDANT’S MISCELLANEOUS MOTIONS