Janix, Inc. v. Raes, et. al.

Filing 18

ORDER Denying without prejudice 16 Ex Parte Motion to Stay Requirement to File Discovery Plan. Signed by Magistrate Judge Nancy J. Koppe on 5/20/2013. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

***

11

JANIX, INC.,

12
Plaintiff,
13
vs.
14
JOEL RAES and CONSUELA KONI RAES,
15
16

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

2:12-cv-02084-GMN-NJK

ORDER

17
Before the Court is Plaintiff’s Ex Parte Motion to Stay Requirement to File Disocovery
18
Plan (#16), filed on May 20, 2013.
19
BACKGROUND
20
On December 6, 2012, the Plaintiff filed a complaint and amended complaint in this
21
matter alleging embezzlement by its former website manager. On April 5, 2013, the Defendants
22
filed a motion to dismiss. That motion to dismiss was fully briefed on May 2, 2013, and is still
23
pending. To date, the parties have not filed a proposed discovery plan and scheduling order as
24
required by Fed.R.Civ.P. 26. The Rule 26(f) conference was required to be held within 30 days
25
of April 5, 2013, when the first Defendants filed their Motion to Dismiss, and the stipulated
26
discovery plan was due 14 days thereafter. See Local Rule 26-1(d). Thus, the final date to submit
27
the proposed discovery plan and scheduling order was May 20, 2013.
28

1

Instead of filing a discovery plan, however, according to the Plaintiff, the parties have

2

recently agreed to submit to arbitration on this matter. The Plaintiff anticipates that a stipulation

3

to arbitrate will be submitted to the Court within two weeks of May 20, 2013. For this reason, the

4

Plaintiff requests that the Court allow the parties to submit their stipulation concerning

5

arbitration in lieu of a discovery plan. The Plaintiff has filed this request as an ex parte motion.1

6

DISCUSSION

7

“When an ex parte motion is filed . . . [t]he judge drops everything except other urgent

8

matters to study the papers. It is assumed that . . . all will be lost unless immediate action is

9

taken.” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 491-92 (C.D. Cal. 1995).

10

“Lawyers must understand that filing an ex parte motion, whether of the pure or hybrid type, is

11

the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be

12

a fire.” Id. Accordingly, courts are highly sensitive to unwarranted ex parte motions. Id.

13

Rule 7–5 of the Local Rules of Practice states, “[a]ll ex parte motions, applications or

14

requests shall contain a statement showing good cause why the matter was submitted to the Court

15

without notice to all parties, [and] applications or requests may be submitted ex parte only for

16

compelling reasons, and not for unopposed or emergency motions.” LR 7-5(b)-(c) (emphasis

17

added). In order to show that ex parte relief is necessary, “[f]irst, the evidence must show that the

18

moving party's cause will be irreparably prejudiced if the underlying motion is heard according to

19

regular noticed motion procedures.” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp.

20

488, 492 (C.D. Cal. 1995).

21

“A sliding scale is used to measure the threat of prejudice. If the threatened prejudice

22

would not be severe, then it must be apparent that the underlying motion has a high likelihood of

23

success on the merits. If drastic harm is threatened, then it is sufficient to show that there are

24

close issues that justify the court's review before the party suffers the harm.” Id.

25
26
27
28

1

The motion contains a certification that it was served via Nevada’s CM/ECF “which will
send notification of such filing and constitute e-service of same to Defendants’ counsel of record in
this case.” Docket. No. 16, at 3. Since counsel filed this motion ex parte, however, this certification
is inaccurate. The Plaintiff subsequently filed a separate certification indicating that the motion was
served via U.S. Mail. Docket No. 17.
-2-

1

Here, the Plaintiff failed to show good cause why this motion was submitted to the Court

2

as an ex parte motion. See LR 7-5(b). The Plaintiff does not even attempt to argue that it will be

3

irreparably prejudiced if the underlying motion is heard according to regular noticed motion

4

procedures. Rather, the Plaintiff states that the Defendants have agreed to arbitration and that the

5

parties will be filing a stipulation shortly. If both parties wish to stay this case pending their

6

formal stipulation to arbitrate, the correct manner to make this request is a stipulation to stay.2

7

The present motion to stay simply does not establish that the Plaintiff will be irreparably

8

prejudiced if its motion is heard on the regular motion calendar.

9

Additionally, the Court notes that the parties did not properly meet and confer prior to the

10

filing of this motion. LR 26-7(b) provides that a “[d]iscovery motion will not be considered

11

unless a statement of the movant is attached thereto certifying that, after personal consultation

12

and sincere effort to do so, the parties have not been able to resolve the matter without Court

13

action. LR 26-7. Personal consultation means the movant must “personally engage in two-way

14

communication with the nonresponding party to meaningfully discuss each contested discovery

15

dispute in a genuine effort to avoid judicial intervention.” ShuffleMaster, Inc. V. Progressive

16

Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). Meaningful discussion means the parties must

17

present the merits of their respective positions and assess the relative strengths of each. See

18

Fifty-Six Hope Rd. Music, Ltd. v. Mayah Collections, Inc., 2007 WL 1726558, *11 (D. Nev. June

19

11, 2007). Here, the Plaintiff failed to indicate what efforts, if any, were made to meet and confer

20

prior to filing this ex parte motion.

21

Accordingly, the parties should properly meet and confer on this issue and try to reach an

22

agreement on this matter. However, if no agreement can be reached, the Plaintiff may re-file this

23

motion as a noticed motion and, upon a showing of good cause, may request an expedited

24

briefing schedule.

25

...

26

...

27
2

28

Stipulations to stay are subject to the requirements articulated in Tradebay, LLC v. eBay,
Inc., 278 F.R.D 597(D. Nev. 2011).
-3-

1

CONCLUSION

2

Based on the foregoing, and good cause appearing therefore,

3

IT IS HEREBY ORDERED that Plaintiff’s Ex Parte Motion to Stay Requirement to File

4
5

Disocovery Plan (#16) is DENIED without prejudice.
DATED this

20th

day of May, 2013

6
7
8
9

NANCY J. KOPPE
United States Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-