Pittman v. Aswan Restaurant Group, LLC et al

Filing 16

ORDER Denying Ex Parte Motion to Compel without Notice of Defendants (Doc. Nos. 12 , 14 ). Signed by Judge Roger T. Benitez on 12/30/2011. (knb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROD PITTMAN,

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CASE NO. 11cv2259 BEN (JMA)
Plaintiff,

ORDER DENYING EX PARTE
MOTION TO COMPEL WITHOUT
NOTICE TO DEFENDANTS

vs.
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ASWAN RESTAURANT GROUP, LLC, et
al.

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[Dkt. Nos. 12, 14.]

Defendants.

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On December 16, 2011, Plaintiff Rod Pittman filed an “Ex Parte Motion to Compel With

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Notice” seeking an order from the Court compelling Neighborhood National Bank to “restrain the

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transfer and direct payment to Plaintiff of those sums held by the bank, and possessed by the

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Defendants under the statutory trust imposed under the Perishable Agricultural Commodities Act

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(PACA), pursuant to this courts preliminary injunction issued on October 6, 2011.” (Pl’s. Ex Parte

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Mot. to Compel ¶ 1.) While Plaintiff did provide notice to Neighborhood National Bank, Plaintiff

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failed to provide notice, or an explanation for the lack of notice, to Defendants. (Court’s December

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19, 2011 Order.) The motion was denied on this basis on December 19, 2011. (Id.) The Court also

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ordered Plaintiff to serve a copy of the Court’s Order on Defendants and Neighborhood National Bank.

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(Id.)
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11cv2259

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Plaintiff has now filed an “Ex Parte Motion to Compel With Notice to the Bank, but Without

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Notice to the Defendants.” (Dkt. No. 14.) Plaintiff again moves for an “Order to Compel

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Neighborhood National Bank to restrain the transfer and direct payment to Plaintiff of those sums held

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by the bank, and possessed by the Defendants” without notice to the Defendants. (Dkt. No. 14.)

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There are numerous problems with Plaintiff’s motion that prevent the Court from providing

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the relief requested. Plaintiff cites no authority for the Court to issue an order specifically compelling

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Neighborhood National Bank to restrain the transfer of Defendants’ funds without notice to

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Defendants. This lack of authority leaves the Court to guess whether Plaintiff is seeking an order

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modifying the existing Preliminary Injunction to specifically name Neighborhood National Bank and

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require the restraint of the transfer of funds held by it, seeking to find Neighborhood National Bank

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in contempt of the Court’s existing Preliminary Injunction issued with the consent of Defendants, or

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if there is some other basis for the relief requested.

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Additionally, regardless of the basis for the request, Plaintiff has not demonstrated that the

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requested relief should be granted without notice to Defendants and on an expedited basis. The

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“circumstances justifying the issuance of an ex parte order are extremely limited” because “our entire

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jurisprudence runs counter to the notion of court action taken before reasonable notice and an

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opportunity to be heard has been granted both sides of a dispute.” Reno Air Racing Ass’n v. McCord,

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452 F.3d 1126, 1131 (9th Cir. 2006) (citing Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423,

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438-39 (1974). Plaintiff’s motion does not address why the relief requested should be granted without

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notice to Defendants or provide any authority for granting the relief without notice. The Declaration

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filed by Plaintiff’s counsel speculates that Defendants are attempting to avoid payment to Plaintiff by

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stopping scheduled installment payments through a credit card processor and that Defendants would

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immediately pull all their funds out of Neighborhood National Bank if notice was given, but this

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speculation is inconsistent with the record in this case. (Decl. of Mitch Wallis ¶¶ 6-8.) Defendants

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agreed to the imposition of the Preliminary Injunction that restrained the transfer of all their assets and

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have apparently not attempted to withdraw those assets held at Neighborhood National Bank. Because

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Plaintiff has not demonstrated that the relief requested should be granted without notice to Defendants,

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Plaintiff’s motion is DENIED.
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11cv2259

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If Plaintiff continues to seek the relief requested, Plaintiff must file a properly supported

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motion identifying the basis for the relief requested, serve the motion on Defendants and

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Neighborhood National Bank, and comply with the requirements of Civil Local Rule 7.1. Plaintiff

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shall also serve a copy of this Order on Defendants and Neighborhood National Bank.

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IT IS SO ORDERED.

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DATED: December 30, 2011

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Hon. Roger T. Benitez
United States District Judge

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11cv2259