Bona Fide Conglomerate, Inc. v. SourceAmerica et al

Filing 468

ORDER Granting 464 Plaintiff's Ex Parte Motion for Leave to File to File Sur-Reply Responding to Defendant's Evidentiary Objections. Signed by Judge Gonzalo P. Curiel on 7/12/17. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BONA FIDE CONGLOMERATE, INC.,

Case No.: 3:14-cv-00751-GPC-AGS

Plaintiff,

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ORDER GRANTING PLAINTIFF’S
EX PARTE APPLICATION FOR
LEAVE TO FILE SUR-REPLY
RESPONDING TO DEFENDANT’S
EVIDENTIARY OBJECTIONS

v.
SOURCEAMERICA,
Defendant.

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[ECF No. 464.]

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On July 11, 2017, Plaintiff filed an ex parte application for permission to file a sur-

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reply responding to Defendant’s objections to Plaintiff’s evidence offered in opposition to

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Defendant’s pending motion for summary judgment or, alternatively, partial summary

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judgment. (Dkt. No. 464.)

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“Ex parte applications are a form of emergency relief that will only be granted upon

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an adequate showing of good cause or irreparable injury to the party seeking relief.” Clark

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v. Time Warner Cable, No. CV 07 1797 VBF(RCX), 2007 WL 1334965 at *1 (C.D. Cal.

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May 3, 2007) (citing Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488,

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492 (C.D. Cal. 1995)). An ex parte application must address why the regular noticed

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motion procedures must be bypassed. Mission Power Eng’g Co., 883 F. Supp. at 492. The
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3:14-cv-00751-GPC-AGS

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reasons provided “must be supported by deposition transcripts or by affidavits or

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declarations whose contents would be admissible if the deponents, affiants or declarants

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were testifying in court.” Id. Second, the moving party must be “without fault” in creating

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the need for ex parte relief or establish that the urgency occurred as a result of excusable

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neglect. Id.; see also Langer v. McHale, No. 13CV2721-CAB-NLS, 2014 WL 4922351, at

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*2 (S.D. Cal. Aug. 20, 2014) (denying ex parte motion because defendants failed to make

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an adequate showing of good cause or irreparable injury to warrant ex parte relief).

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“A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The
Advisory Committee Notes regarding the 2010 amendments to Rule 56 explain:
Subdivision (c)(2) provides that a party may object that material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.
The objection functions much as an objection at trial, adjusted for the pretrial
setting. The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated. There is no need to
make a separate motion to strike. If the case goes to trial, failure to challenge
admissibility at the summary-judgment stage does not forfeit the right to challenge
admissibility at trial.

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Fed. R. Civ. P. 56 advisory committee’s note. Courts have observed that Rule 56(c)(2)

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contemplates allowing the proponent of the evidence to respond to evidentiary objections.

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See, e.g., SEC v. Strategic Glob. Investments, Inc., No. 16-CV-514 JLB (WVG), 2017

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WL 1387187, at *7 (S.D. Cal. Apr. 17, 2017) (“When a party objects that material cited

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to dispute a fact cannot be presented in a form that would be admissible at trial, as

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Plaintiff does here, the burden shifts to the proponent of the evidence to either show that

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the material is admissible as presented or explain the admissible form that it anticipates it

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will produce at trial.”).

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Defendant attached to its reply brief 67 pages of evidentiary objections to Plaintiff’s

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evidence offered in opposition to Defendant’s pending motion. (Dkt. Nos. 459-2, 459-3.)

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Plaintiff’s proposed sur-reply is likewise lengthy. (Dkt. No. 464-1.) The Court observes

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that the parties have also asserted evidentiary objections in response to each other’s separate
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statements of undisputed material facts. While the Court expresses concern regarding the

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voluminous evidentiary objections asserted in relation to the pending motion for summary

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judgment, because Plaintiff’s sur-reply ultimately consists solely of responses to

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Defendant’s evidentiary objections, the Court GRANTS Plaintiff’s leave to file its

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proposed sur-reply.

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IT IS SO ORDERED.
Dated: July 12, 2017

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