Tapang v. Wells Fargo Bank, N.A. et al

Filing 22

Order by Hon. Lucy H. Koh denying 20 Motion for Extension of Time to File Response/Reply.(lhklc3S, COURT STAFF) (Filed on 8/10/2012)

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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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ESTERLITA CORTES TAPANG,
Plaintiff,

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v.
WELLS FARGO BANK, N.A., et al.,
Defendants.

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Case No.: 12-CV-02183-LHK
ORDER DENYING EX PARTE
MOTION FOR EXTENSION OF TIME
TO FILE RESPONSE

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Defendants filed a Motion to Dismiss on June 22, 2012, which is noticed for hearing on
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August 30, 2012. ECF No. 18. In their notice of motion, Defendants erroneously stated that the
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opposition deadline was August 9, 2012, and that the reply deadline was August 16, 2012. In fact,
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under Civil Local Rule 7-3, Plaintiff’s opposition to Defendants’ Motion was due July 6, 2012, and
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Defendants’ reply was due July 13, 2012. See Civ. L. R. 7-3(a), (c). The parties did not file a
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stipulation seeking Court approval to modify the briefing schedule in departure from the Civil
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Local Rules. As of today, August 10, 2012, Plaintiff has not filed an opposition, and Defendants
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have not filed a reply.
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Instead, on August 9, 2012, Plaintiff filed an ex parte Motion for Extension of Time to File
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Response, seeking an extension until August 15, 2012. See ECF No. 20. The sole basis proffered
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for the request is that Plaintiff’s counsel has been preoccupied caring for his terminally ill friend.
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See id. at 2-3; Decl. of Francisco J. Aldana ¶¶ 3-5. While the Court is sympathetic to Plaintiff’s
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Case No.: 12-CV-02183-LHK
ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE RESPONSE

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counsel’s situation, Plaintiff’s motion does not justify her failure to timely file an opposition in

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accordance with the Civil Local Rules, or at the very least to file a request for extension of time in

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advance of her opposition deadline. Even assuming Plaintiff believed in good faith, based on

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Defendants’ notice of motion, that her opposition was not due until August 9, 2012, her Motion for

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Extension of Time does not explain why she waited until the day she believed her opposition was

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due to file a request for an extension. Were the Court to grant Plaintiff’s untimely request for an

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extension until August 15, 2012, Defendants’ reply would be due at the earliest on August 22,

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2012, 1 just one week before the scheduled hearing on Defendants’ Motion. Plaintiff’s request

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would deprive the Court of the time needed to review the parties’ briefing and would unfairly

United States District Court
For the Northern District of California

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prejudice Defendants.

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Plaintiff’s behavior is unfortunately part of a pattern of delaying filings until the last

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possible moment and then seeking ex parte relief. Plaintiff previously filed not one but two ex

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parte requests for Temporary Restraining Orders (“TRO”), each filed on the eve of a purported

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trustee’s sale on her home. See ECF No. 1; ECF No. 9. The Court denied Plaintiff’s second ex

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parte TRO in part because Plaintiff failed to explain why she waited until the eve of the trustee’s

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sale to seek injunctive relief when she had notice of the scheduled sale far earlier. See ECF No. 11.

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On June 1, 2012, the Court issued an Order to Show Cause (“OSC”) why this case should not be

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dismissed for failure to prosecute, prompted by Plaintiff’s failure to comply with the Court’s May

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23 Order to serve the Summons and Complaint on all Defendants. See ECF No. 12.

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Plaintiff’s opposition was due July 6, 2012, and is now five weeks late. Plaintiff has not

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demonstrated good cause for an extension of time to file her response. For all the reasons

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discussed herein, Plaintiff’s motion for an extension of time to file a response is DENIED. Any

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untimely filed opposition will be stricken.

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IT IS SO ORDERED.

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Dated: August 10, 2012

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_________________________________
LUCY H. KOH
United States District Judge

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If the Court were to grant Plaintiff an extension, the Court would be inclined to grant Defendants
the same extension.
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Case No.: 12-CV-02183-LHK
ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE RESPONSE