Ottele v. Martinez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUSAN OTTELE, et al., Case No. 1:22-cv-00187-JLT-CDB 12 Plaintiffs, ORDER REQUIRING DEFENDANTS TO 13 v. FILE AN OPPOSITION OR STATEMENT OF NON-OPPOSITION TO PLAINTIFFS’ 14 OSCAR MARTINEZ, et al., APPLICATION FOR ORDER TO APPOINT SPECIAL ADMINISTRATOR FOR THE 15 Defendants. ESTATE OF DEFENDANT AARON HODGES 16 (Doc. 96) 17 18 OCTOBER 18, 2024 DEADLINE 19 20 Background 21 Plaintiffs Susan Ottele and William Collier, Jr. (collectively, “Plaintiffs”) initiated this 22 action on behalf of the Estate of their deceased son, Adam J. Collier, with the filing of a 23 complaint against Defendants Oscar Martinez and Aaron Hodges on February 14, 2022. (Doc. 24 1). Following the Court’s partial grant of Defendants’ motion for summary judgment on August 25 23, 2024, the action proceeds on Plaintiffs’ wrongful death claim against Defendant Hodges, 26 who is deceased. (Doc. 82). 27 On September 25, 2024, the Court directed Defendants to file a renewed suggestion of death, triggering a renewal of the 90-day period within which to substitute a party for Defendant 1 Hodges. (Doc. 92). On October 2, 2024, Defendants timely filed a renewed notice of suggestion 2 of death of Defendant Hodges. (Doc. 93). 3 Pending before the Court is Plaintiffs’ ex parte application for order to appoint special 4 administrator for the estate of Defendant Hodges. (Doc. 96). Neither Plaintiffs’ memorandum 5 of points and authorities nor the supporting declaration of attorney Jay A. Christofferson 6 addresses why the application is brought ex parte. See generally (Docs. 96-1, 96-2). 7 Governing Legal Standard 8 “The expression ‘ex parte motion’ is a term of art. In its pure form it means a request a 9 party makes to the court without any notice to the other side.” Mission Power Eng’g Co. v. 10 Cont’l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). “Ex parte relief is generally disfavored 11 when relief may be had through a regularly noticed motion.” Hufnagle v. Rino Int’l Corp., No. 12 CV 10-08695 DDP (VBKx), 2012 WL 6553743, at *1 (C.D. Cal. Dec. 14, 2012). 13 Local Rule 144(e) provides in relevant part: “Ex parte applications to shorten time will 14 not be granted except upon affidavit of counsel showing a satisfactory explanation for the need 15 for the issuance of such an order and for the failure of counsel to obtain a stipulation for the 16 issuance of such an order from other counsel or parties in the action.” Thus, Courts will consider 17 an ex parte motion where “the moving party’s cause will be irreparably prejudiced if the 18 underlying motion is heard according to regular noticed motion procedures.” Mission Power 19 Eng’g Co., 883 F. Supp. at 492. Additionally, “it must be established that the moving party is 20 without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a 21 result of excusable neglect.” Id. 22 Discussion 23 Plaintiffs’ application fails to comply with Local Rule 144(e) as it neither offers an 24 explanation as to why the relief sought cannot be had through regular motion procedures nor 25 addresses why the relief cannot be facilitated through stipulated request. 26 The current deadline to seek substitution of a party following Defendants’ renewed filing 27 of notice of suggestion of death is December 31, 2024. Although unstated by Plaintiffs, the 1 | the requested appointment of a special administrator. Nevertheless, Plaintiffs have not 2 | demonstrated the need for ex parte relief from the Court or identified irreparable prejudice that 3 | would arise if the application were heard according to regular noticed motion procedures. 4 Based on the foregoing, the Court finds no basis to entertain Plaintiffs’ application on an 5 | ex parte basis. Instead, the Court shall order Defendants to file an opposition or statement of 6 | non-opposition forthwith. 7 Conclusion and Order 8 Accordingly, IT IS HEREBY ORDERED that, no later than October 18, 2024, 9 | Defendants shall file an opposition or statement of non-opposition to Plaintiffs’ ex parte 10 | application (Doc. 96). If Defendants file an opposition to the ex parte application, Plaintiffs may 11 | file a reply no later than October 23, 2024. 12 IT IS SO ORDERED. 'S | Dated: _ October 10, 2024 | Vv Vv □ 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28