Hernandez v. Adidas America, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILMER HERNANDEZ, No. 2:23-cv-02671-DJC-AC 12 Plaintiff, 13 v. ORDER 14 ADIDAS AMERICA INC., 15 Defendant. 16 17 18 On May 22, 2024, Plaintiff filed an ex parte application for leave to file a Second 19 Amended Complaint. (Ex Parte Application (ECF No. 25).) This request is presently 20 before the Court. 21 Ex parte applications are generally only granted in rare circumstances as such 22 requests do not afford opposing counsel the usual notice and opportunity to be heard 23 in addition to permitting movants to take priority over other litigants that are following 24 the established filing procedures and timelines. Mission Power Engineering Co. v. 25 Continental Casualty Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). On an ex parte 26 application, the moving party must show that they will suffer irreparable prejudice if 27 the motion is not heard under the regular noticed motion procedures and that they 28 1 are “without fault in creating the crisis that requires ex parte relief, or that the crisis 2 occurred as a result of excusable neglect.” Id. 3 Plaintiff has not met their burden to show that there exists a reason why this 4 matter cannot be heard on the normal schedule for such matters. Plaintiff only 5 vaguely references a need to amend promptly “as there are Statute of Limitations 6 issues involved” without any additional details about what these issues are or why they 7 merit the Court granting this motion ex parte. (Ex Parte Application at 7.) Plaintiff’s 8 proposed amendments seek to add an additional Plaintiff, a cause of action, and 9 factual allegations.1 The broad unsupported statement that there are “statute of 10 limitations issues” and the general need to not delay this case is insufficient to warrant 11 the Court granting leave to make substantive amendments to the complaint on an ex 12 parte basis. 13 Additionally, Plaintiff’s motion does not show that Plaintiff is “without fault” in 14 creating the need for ex parte action. Plaintiff’s complaint indicates that Plaintiff (or, 15 more accurately, Plaintiff’s counsel) is seeking leave to amend in part because 16 “Plaintiff’s counsel has been unable to establish proper contact with the current 17 Plaintiff.” (Ex Parte Application at 2.) Plaintiff also indicates that these issues arose as 18 early as March 2024. (Id. at 3.) While some of the intervening time was undoubtedly 19 spent attempting to reestablish contact with Plaintiff as well as meeting and conferring 20 with opposing counsel, Plaintiff still waited until May 22, 2024 to request leave to 21 amend the complaint, despite the fact that Plaintiff’s counsel was not in contact with 22 the Plaintiff well before that date and there were “statute of limitation issues” that 23 made timely amendment important. 24 25 1 The Court notes that Plaintiff has also not fully complied with Local Rule 137(c) which requires that “[i]f filing a document requires leave of court, such as an amended complaint after the time to amend as a 26 matter of course has expired, counsel shall attach the document proposed to be filed as an exhibit to moving papers seeking such leave . . . .” Plaintiff has attached a redlined version showing differences 27 between the proposed amended complaint and the current operative complaint. While this is a helpful and welcome inclusion with such motions, a plaintiff seeking to amend must still file the proposed 28 amended complaint as it would look if leave to amend was granted. 1 In light of the above, IT IS HEREBY ORDERED that Plaintiff’s ex parte application 2 (ECF No. 25) is DENIED. This order does not preclude Plaintiff from seeking further 3 leave to amend or from seeking to shorten time for such motion pursuant to Local 4 Rules 144(e) and 233. If Plaintiff does seek such relief, Plaintiff is encouraged to 5 review the Amended Scheduling Order (ECF No. 24) at p. 1 ln. 21-24 (“No further 6 joinder of parties or amendments to pleadings is permitted without leave of the Court, 7 good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth 8 Recreations, Inc., 975 F.2d 27 604 (9th Cir. 1992).”). 9 10 Dated: May 31, 2024 /s/ Daniel J. Calabretta THE HONORABLE DANIEL J. CALABRETTA 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28