Securities and Exchange Commission v. Small Business Capital Corp. et al

Filing 106

ORDER RE: DEFENDANT MARK FEATHERS PENDING MOTIONS. All ex parte relief requested in Defendants eight pending motions is DENIED. The court instructs the clerk to schedule #92 , #93 , #94 , #96 the motions under Federal Rule of Civil Procedure 12 for hearing on the next available civil motion calendar. Briefing on those motions shall occur according to the deadlines provided by Civil Local Rule 7. Defendant may re-file #102 , #103 , #104 , #105 the remaining four motions as regularly noticed motions pursuant to Civil Local Rule 7-2. Signed by Judge Edward J. Davila on 11/13/2012. (ejdlc1, COURT STAFF) (Filed on 11/13/2012) (Additional attachment(s) added on 11/13/2012: #1 Certificate of Service) (ecg, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
CASE NO. 5:12-cv-03237 EJD

SECURITIES AND EXCHANGE
COMMISSION,

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For the Northern District of California

United States District Court

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ORDER RE: DEFENDANT MARK
FEATHERS’ PENDING MOTIONS

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Plaintiff(s),
v.

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[Docket Item No(s). 92, 93, 94, 96, 102, 103,
104, 105]

SMALL BUSINESS CAPITAL CORP., et.
al.,

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Defendant(s).
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/
Presently before the court are eight motions, all filed by pro se Defendant Mark Feathers

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(“Defendant”). See Docket Item Nos. 92-94, 96, 102-105. In four of the motions, Defendant seeks

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relief under Federal Rule of Civil Procedure 12. See Docket Item Nos. 92-94, 96. In the remaining

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four, Defendant seeks certain modifications to the preliminary injunction and order establishing a

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temporary receivership. See Docket Item Nos. 102-105. All eight of the motions were filed by

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Defendant on an ex parte basis.

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Civil Local Rule 7-10 states:
Unless otherwise ordered by the assigned Judge, a party may file an ex
parte motion, that is, a motion filed without notice to opposing party,
only if a statute, Federal Rule, local rule or Standing Order authorizes
the filing of an ex parte motion in the circumstances and the party has
complied with the applicable provisions allowing the party to
approach the Court on an ex parte basis. The motion must include a
citation to the statute, rule or order which permits the use of an ex
parte motion to obtain the relief sought.

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CASE NO. 5:12-cv-03237 EJD
ORDER RE: DEFENDANT MARK FEATHERS’ PENDING MOTIONS

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Having reviewed the Defendant’s motions, the court is unable to find reference to the statute,

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Federal Rule, local rule or standing order which allows for ex parte treatment of the relief requested.

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Indeed, the four motions which arise under Federal Rule of Civil Procedure 12 can only be heard

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after regular notice, and much of the relief Defendant seeks in the requests to modify the preliminary

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injunction are similarly unsuited for ex parte review.

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Accordingly, all ex parte relief requested in Defendant’s eight pending motions is DENIED.

(Docket Item Nos. 92-94, 96) for hearing on the next available civil motion calendar. Briefing on

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those motions shall occur according to the deadlines provided by Civil Local Rule 7. Defendant

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may re-file the remaining four motions (Docket Item Nos. 102-105) as regularly noticed motions

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For the Northern District of California

The court instructs the clerk to schedule the motions under Federal Rule of Civil Procedure 12

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United States District Court

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pursuant to Civil Local Rule 7-2. Defendant is advised that, although he is proceeding pro se, he is

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nonetheless “expected to abide by the rules of the court in which he litigates.” Carter v. Comm’r of

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Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986). This requires observance of all Federal

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Rules of Civil Procedure, Civil Local Rules, standing orders applicable to this court, as well as the

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requirement that all parties obtain a hearing date from the undersigned’s Courtroom Deputy before

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filing a motion. See Standing Order Regarding Case Management in Civil Cases (San Jose Judges’

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Standing Order), available at www.cand.uscourts.gov. Failure to do so may result in the imposition

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of sanctions.

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IT IS SO ORDERED.

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Dated: November 13, 2012
EDWARD J. DAVILA
United States District Judge

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CASE NO. 5:12-cv-03237 EJD
ORDER RE: DEFENDANT MARK FEATHERS’ PENDING MOTIONS