Casey Gerry Schenk, Francavilla Blatt & Penfield LLP et al v. Estate of Robert Cowan et al

Filing 30

ORDER Granting 29 Ex Parte Motion for Extension of Time to Respond to the Complaint and the Crossclaim: Suzanne Dimeff and Oleta L. Cowan Trust shall file and serve responses to the complaint and the crossclaim no later than 7/15/2010. Signed by Judge M. James Lorenz on 7/6/2010. (mjj)

-BGS Casey Gerry Schenk, Francavilla Blatt & Penfield LLP et al v. Estate of Robert Cowan et al

Doc. 30

1 2 3 4 5 6 7 8 9 10 11 CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD 12 LLP et al. 13 14 v. 15 ESTATE OF ROBERT COWAN et al., 16 17 Defendants; _________________________________ Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 10cv821-L(BGS) ORDER GRANTING EX PARTE APPLICATION TO EXTEND TIME TO RESPOND TO THE COMPLAINT AND THE CROSSCLAIM UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

AND RELATED COUNTERCLAIM 18 AND CROSSCLAIM. 19 20

On June 30, 2010 Defendants Suzanne Dimeff ("Dimeff") and Oleta L. Cowan Trust

21 ("Trust") filed an ex parte application requesting an extension of time to respond to the 22 complaint and the "Counter/Cross Claim" of Defendant Estate of Robert Cowan ("Estate"). This 23 is their fourth request for extension of time. 24 In this interpleader action Plaintiffs request the court to determine how to distribute the

25 late Robert Cowan's share of the attorney's fees and costs earned in the Exxon Valdez litigation 26 among three claimants ­ the Estate, Robert Cowan's sister Suzanne Dimeff, and Robert Cowan's 27 late mother's trust, the Oletta L. Cowan Trust. These claimants are currently involved in probate 28
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1 litigation1 in the Superior Court for the State of Alaska which involves, among other things, their 2 respective right to a distribution of Robert Cowan's portion of the Exxon Valdez attorney's fees 3 and costs. In that litigation, pursuant to the Estate's motion, the Alaska probate court enjoined 4 Dimeff and the Trust from filing claims in other proceedings. According to Dimeff and the 5 Trust, the order precludes them from filing answers and their own counterclaim against Plaintiffs 6 and crossclaim against the Estate. While they filed a motion to vacate the order in probate 7 action,2 the order so far has not been vacated.3 (Ex parte App. at 2; Decl. of Don Howrath field 8 June 30, 2010 ("Howrath Decl.") at 1.) 9 Based on the foregoing, Dimeff and the Trust request another extension of time to

10 respond to the complaint and the Estate's crossclaim. While Plaintiffs allegedly agreed to an 11 extension until July 15, 2010, the Estate would prefer a stay of this case. (Howrath Decl. at 2.) 12 In addition to requesting the extension of time to respond, Dimeff and the Trust suggest

13 that this court should sua sponte take action to enjoin the Estate's activities or the probate action 14 in Alaska. (Ex parte App. at 3, 4; Howrath Decl. at 1.) They have not filed any motions 15 requesting this type of relief. If they want the court to issue an order enjoining the probate 16 action or the Estate's related activities, they must do so by a motion and state precisely what 17 relief they seek. See Fed. R. Civ. Proc. 7(b). If they choose to file such motion, they should 18 discuss, in addition to all other pertinent issues, the probate exception to federal jurisdiction in 19 order to define the scope of any appropriate relief. See Marshall v. Marshall, 547 U.S. 293 20 (2006); see also Franklin Life Ins. Co. v. Mast, 435 F.2d 1038, 1042 (9th Cir. 1970) 21 22 23 To date no party has indicated when the probate litigation commenced. As Mr. Cowan died in 2003 (Compl. at 1), it appears that the proceedings have been pending for several 24 years now. 25 2 Contrary to their representation (Ex parte App. at 2), this court has not received a courtesy copy of the motion to vacate filed in the probate action. The court typically does not 26 consider papers which have not been filed in this court's file. Merely delivering them to 27 chambers would not be sufficient to warrant consideration. 3 Dimeff and the Trust do not state whether the order has not been vacated because 28 their motion has not been ruled upon or because their motion was denied.
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1 (interpleader).4 2 Based on the foregoing, the court finds good cause pursuant to Federal Rule of Civil

3 Procedure 6(b) and Civil Local Rule 12.1, to GRANT the ex parte application. No later than 4 July 15, 2010 Defendants Suzanne Dimeff and Oleta L. Cowan Trust shall file and serve 5 responses to the complaint and the crossclaim. If they want the court to issue injunctive or any 6 other relief, they must file an appropriate motion. 7 8 9 DATED: July 6, 2010 10 11 12 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. BERNARD G. SKOMAL 13 UNITED STATES MAGISTRATE JUDGE 14 ALL PARTIES/COUNSEL 15 16 17 18 19 20 21 22 23 24 25 26 In suggesting that the court should act sua sponte on their behalf in enjoining the probate action, Dimeff and the Trust rely entirely on out-of-circuit precedent. (See Ex parte 27 App. at 4.) Should in any future filings they again desire to rely on persuasive rather than 28 binding precedent, they must state that despite diligent research, they were not able to find a binding precedent addressing the issue, whether contrary to or in support of their position.
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