Fajardo v. United States Department of State ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BERTHA VAZQUEZ FAJARDO, et Case No.: 16cv2980-LAB (MDD) al., 12 ORDER REQUIRING COUNSEL Plaintiff, 13 TO REFRAIN FROM EX PARTE v. COMMUNICATION AND 14 MISUSE OF EMAIL ADDRESS UNITED STATES DEPARTMENT 15 OF STATE, et al., 16 Defendant. 17 18 19 It has come to the Court’s attention that Plaintiff’s counsel has been phoning 20 chambers without opposing counsel on the line, suggesting that the stay should 21 be lifted and asking what he should do to effect this. Chambers staff properly 22 declined to offer an explanation or answer, or to predict what action the Court might 23 take or when. 24 Attorneys are reminded to refrain from requesting legal advice from Court 25 staff, and to refrain from attempting to engage in ex parte communications. Calling 26 chambers staff to ask how to have a stay lifted amounts to asking for legal advice. 27 It is particularly inappropriate here, where the matter is disputed and where other 28 counsel or litigants are not participating in the call, or likely even aware of it. 1 Today, after chambers staff correctly declined to answer Plaintiff’s counsel’s 2 questions, he emailed this Chambers and Magistrate Judge Dembin’s chambers 3 using the email addresses reserved for lodging proposed orders for electronically- 4 filed motions. His email includes a request that the stay be lifted, and gives his 5 reasons for thinking the stay should be lifted. Opposing counsel were copied on 6 the email, and one filed a response addressing his points. 7 Under Civil Local Rule 5.4(a), motions are to be electronically filed in the 8 docket. Under Rule 5.4(f), counsel are required to follow this District’s and 9 Electronic Case Filing Administrative Policies and Procedures Manual when filing 10 documents electronically. The Manual forbids registered users from using the e- 11 filing email addresses to communicate with the Court, except in circumstances not 12 present here. See Manual, § 2(h). (“These e-mail addresses are not to be 13 utilized to communicate with the Court unless otherwise permitted or when 14 communications are solicited by the Court.”) (emphasis in original). Unsolicited 15 and unexpected emails are discourteous to the Court, and unlikely to be effective. 16 Besides violating these rules, attempting to file and brief motions via email 17 amounts to litigating in secret, with no good cause shown and without the Court’s 18 leave. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179–80 (9th 19 Cir. 2006). The Court will not consider or act on the emailed requests or briefing. 20 The proper vehicle for requesting that the stay be lifted, or for opposing its being 21 lifted, is a publicly filed and noticed motion. Chambers efile email addresses are to 22 be used only for authorized purposes. Conduct in derogation of this rule is 23 sanctionable. 24 As counsel are aware, the Court certified for interlocutory appeal the issue 25 of Agent Rico’s scope of employment, and stayed the case until further notice to 26 allow for resolution of the issue. The Ninth Circuit accepted the issue for appeal, 27 and the appeal is still pending. Although the panel issued a memorandum decision, 28 it has not issued a mandate. Thus, jurisdiction over the issue appealed is still with 1 Ninth Circuit, and not with this Court. See Marrese v. Am. Academy oi 2 || Orthopaedic Surgeons, 470 U.S. 373, 379 (1985); Sgaraglino v. State Farm Fire 3 ||& Cas. Co., 896 F.2d 420, 421 (9th Cir.1990) (noting that appellate court’s 4 mandate returned jurisdiction to the district court). While the Court could, in theory, 5 ||continue to adjudicate other matters, see Marrese, 470 U.S. at 379 (notice of 6 ||appeal divests district court of jurisdiction over the issues appealed), the same 7 ||reasons for staying the case and certifying the issue for appeal continue to apply 8 |/in full force. 9 10 IT IS SO ORDERED. 11 ||Dated: January 10, 2020 12 ACB, WY 13 Hon. Lafry Alan Burns 44 Chief United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28