R.J. Reynolds Tobacco Company v. Becerra ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 R.J. REYNOLDS TOBACCO Case No.: 20-CV-1990 JLS (WVG) COMPANY, et al., 12 ORDER DENYING PLAINTIFFS’ Plaintiffs, 13 EX PARTE APPLICATION v. 14 XAVIER BECERRA, in his official 15 (ECF No. 50) capacity as Attorney General of 16 California; and SUMMER STEPHAN, in her official capacity as District Attorney 17 for the County of San Diego, 18 Defendants. 19 20 21 Presently before the Court is Plaintiffs’ Ex Parte Application for Leave to File a 22 Notice of Recent Development re Plaintiffs’ Opposition to Defendants’ Motion to Dismiss 23 (“Appl.,” ECF No. 50). Defendants filed an Opposition to Plaintiffs’ Application 24 (“Opp’n,” ECF No. 51). After considering the Parties’ arguments and the law, the Court 25 DENIES Plaintiffs’ Application. 26 Plaintiffs request leave to file a notice of recent development “in order to bring the 27 Court’s attention to a new development which is highly germane and relevant to Plaintiffs’ 28 Opposition to the Motion to Dismiss.” Appl. at 2. Plaintiffs request the Court consider the 1 FDA’s authorization of Plaintiffs’ Premarket Tobacco Product Application (“PMTA”) for 2 the IQOS 3 tobacco heating system on December 7, 2020. Ex. A ¶ 1, ECF No. 50-1. 3 Plaintiffs argue that “[t]o authorize PMTAs, FDA engages in a comprehensive 4 determination of whether manufacturers have shown that the product is ‘appropriate for 5 the protection of public health.’” Id. (quoting 21 U.S.C. § 387j(c)(4)). Plaintiffs contend 6 that the FDA’s PMTA approval is relevant “to Plaintiffs’ argument that SB793 is impliedly 7 preempted[.]” Id. ¶ 3. 8 “In our adversary system, ex parte motions are disfavored.” Ayestas v. Davis, 138 9 S. Ct. 1080, 1091 (2018); accord United States v. Thompson, 827 F.2d 1254, 1257 (9th 10 Cir. 1987). Consequently, “opportunities for legitimate ex parte applications are extremely 11 limited.” Maxson v. Mosaic Sales Sols. U.S. Operating Co., LLC, No. 2:14-CV-02116- 12 APG, 2015 WL 4661981, at *1 (D. Nev. July 29, 2015) (quoting In re Intermagnetics Am., 13 Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). A proper ex parte motion must “address . . . 14 why the regular noticed motion procedures must be bypassed,” i.e., “it must show why the 15 moving party should be allowed to go to the head of the line in front of all other litigants 16 and receive special treatment.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 17 488, 492 (C.D. Cal. 1995). This District has additional requirements that parties must meet 18 to demonstrate they are entitled to ex parte relief: 19 A motion for an order must not be made ex parte unless it appears 20 by affidavit or declaration (1) that within a reasonable time before the motion the party informed the opposing party or the 21 opposing party’s attorney when and where the motion would be 22 made; or (2) that the party in good faith attempted to inform the opposing party and the opposing party’s attorney but was unable 23 to do so, specifying the efforts made to inform them; or (3) that 24 for reasons specified the party should not be required to inform the opposing party or the opposing party’s attorney. 25 26 S.D. Cal. Civ. R. 83.3(g)(2). 27 As an initial matter, the Court concludes that Plaintiffs have not demonstrated 28 entitlement to ex parte relief. Compliance with the Local Rules is a prerequisite, not a 1 || substitution, for the additional requirements for ex parte relief articulated in the case law. 2 || Plaintiffs have not avered in an affidavit or declaration that they informed or made attempts 3 ||to inform Defendants of Plaintiffs’ intent to file the present Application. Defendants 4 ||confirm in their Opposition that they “are unaware of any attempt by Plaintiffs to give 5 ||Defendants or their counsel notice of the motion prior to its filing, and Plaintiffs have 6 || provided no reason notice should not have been given.” Opp’n at 2 (citing S.D. Cal. Civ. 7 |\|R. 83.3(g)). Therefore, Plaintiffs’ Application is procedurally deficient and must be 8 || denied. 9 Further, Plaintiffs seek to inform the Court of an approval issued on December 7, 10 ||2020. See Ex. A at 9] 1-2. Plaintiffs filed their Opposition to Defendants’ Motion to I! |}Dismiss on January 14,2021. See ECF No. 44. The Court will not consider arguments or 12 ||information available to Plaintiffs at the time they filed their Opposition, but that Plaintiffs 13 || omitted from their briefing. Where a party simply fails to include a particular argument in 14 |! its opposition to a motion to dismiss, courts generally consider that argument waived. See 15 || Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197, 1210 (N.D. Cal. 2013) (holding that 16 argument was conceded where party failed to address it in its opposition). Plaintiffs’ 17 || Opposition was filed more than a month after the FDA approved Plaintiffs’ PMTA for the 18 ||TQOS 3 tobacco heating system. See Ex. AY 1. Plaintiffs have not identified any new 19 || approvals issued by the FDA since they filed their Opposition brief, just that Plaintiffs 20 ||expect[]” the FDA to act on other pending PMTAs. Therefore, any argument that 21 || Plaintiffs seek to make based on PMTA approvals issued prior the filing of Plaintiffs’ 22 || Opposition brief is waived. 23 For the foregoing reasons, Plaintiffs’ Ex Parte Application is DENIED. 24 IT IS SO ORDERED. 25 ||Dated: April 16, 2021 all f Xe 26 on. Janis L. Sammartino United States District Judge 28