(PC) Taylor v. Commissioner of the California Department of Corrections and Rehabilitation ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRESTON TAYLOR, ) Case No.: 1:20-cv-00798-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S EX PARTE 13 v. ) MOTION TO MODIFY THE SCHEDULING ORDER 14 COMMISSIONER OF CALIFORNIA ) DEPARTMENT OF CORRECTIONS AND ) (ECF No. 45) 15 REHABILITATION, et al., ) ) 16 ) Defendants. ) 17 ) 18 Plaintiff Preston Taylor is proceeding in forma pauperis in this civil rights action pursuant to 19 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s ex parte motion to modify the scheduling order, filed 21 December 14, 2021. Plaintiff’s motion was improperly filed ex parte. 22 “In our adversary system, ex parte motions are disfavored.” Ayestas v. Davis, ___ U.S. ___, 23 138 S. Ct. 1080, 1091, 200 L.Ed.2d 376 (2018); accord United States v. Thompson, 827 F.2d 1254, 24 1257 (9th Cir. 1987). Consequently, “opportunities for legitimate ex parte applications are extremely 25 limited.” Maxson v. Mosaic Sales Sol. U.S. Operating Co.,LLC., No. 2:14-CV-02116-APG, 2015 WL 26 4661981, at *1 (D. Nev. July 29, 2015) (quoting In re Intermagnetics Am., Inc., 101 B.R. 191, 193 27 (C.D. Cal. 1989)). 28 1 A proper ex parte motion must “address ... why the regular noticed motion procedures must b 2 || bypassed,” thus, “it must show why the moving party should be allowed to go to the head of the line □ 3 || front of all other litigants and receive special treatment.” Mission Power Eng'g Co. v. Cont'l Cas. Co. 4 || 883 F. Supp. 488, 492 (C.D. Cal. 1995). This requires the moving party to “show that the moving 5 || party's cause will be irreparably prejudiced if the underlying motion is heard according to regular 6 || noticed motion procedures” and “that the moving party is without fault in creating the crisis that 7 || requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. 8 Plaintiff does not meet the requirements for filing an ex parte application. Plaintiff has failed 9 || to demonstrate the need to rule on the motion to modify the scheduling order ex parte other than the 10 || mere fact that Defendant opposes the extension. In addition, the fact that the motion was filed on the 11 || date the discovery deadline was set to expire does not warrant an ex parte application. Thus, Plaintiff 12 || has failed to demonstrate why this motion cannot be brought as a regularly noticed motion, and 13 || counsel should refrain from filing ex parte requests that do not meet the applicable requirements. 14 Accordingly, it is HEREBY ORDERED that Plaintiff's request to hear the motion to modify 15 || the scheduling order (ECF No. 45) s denied, without prejudice. 16 17 ||IT IS SO ORDERED. A (Fe 18 Dated: _ December 15, 2021 OF 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28