J.R. v. San Marcos Unified School District ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 J.R., by and through her Guardians ad Case No.: 21-CV-1752 JLS (AGS) Litem; NICOLE REED; and RONALD 12 REED, ORDER (1) DENYING WITHOUT 13 PREJUDICE PLAINTIFF’S EX Plaintiffs, PARTE APPLICATION TO EXTEND 14 v. TIME; (2) SUA SPONTE STRIKING 15 PLAINTIFF’S EXHIBIT 15; AND (3) SAN MARCOS UNIFIED SCHOOL ORDERING PLAINTIFF TO FILE 16 DISTRICT, OAH’S RULING ON PLAINTIFF’S 17 Defendant. MOTION FOR CLARIFICATION 18 (ECF No. 25) 19 20 21 Presently before the Court is Plaintiff’s Ex Parte Application to Extend the Briefing 22 Schedule (“Appl.,” ECF No. 25). Plaintiff requests the Court “extend the briefing schedule 23 to ten (10) calendar days following [Office of Administrative Hearings (“]OAH’s[”)] ruling 24 on Plaintiff’s Motion for Clarification.” Appl. at 2. For the following reasons, the Court 25 DENIES WITHOUT PREJUDICE Plaintiff’s Application. 26 “In our adversary system, ex parte motions are disfavored.” Ayestas v. Davis, 138 27 S. Ct. 1080, 1091 (2018); accord United States v. Thompson, 827 F.2d 1254, 1257 (9th 28 Cir. 1987). Consequently, “opportunities for legitimate ex parte applications are extremely 1 limited.” Maxson v. Mosaic Sales Sols. U.S. Operating Co., LLC, No. 2:14-CV-02116- 2 APG, 2015 WL 4661981, at *1 (D. Nev. July 29, 2015) (quoting In re Intermagnetics Am., 3 Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). A proper ex parte motion must “address . . . 4 why the regular noticed motion procedures must be bypassed,” i.e., “it must show why the 5 moving party should be allowed to go to the head of the line in front of all other litigants 6 and receive special treatment.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 7 488, 492 (C.D. Cal. 1995). This District has additional requirements that parties must meet 8 to demonstrate they are entitled to ex parte relief: 9 A motion for an order must not be made ex parte unless it appears by affidavit or declaration (1) that within a reasonable time 10 before the motion the party informed the opposing party or the 11 opposing party’s attorney when and where the motion would be made; or (2) that the party in good faith attempted to inform the 12 opposing party and the opposing party’s attorney but was unable 13 to do so, specifying the efforts made to inform them; or (3) that for reasons specified the party should not be required to inform 14 the opposing party or the opposing party’s attorney. 15 16 S.D. Cal. Civ. R. 83.3(g)(2). 17 The Court concludes that Plaintiff has not demonstrated entitlement to ex parte 18 relief. Compliance with the Local Rules is a prerequisite, not a substitution, for the 19 additional requirements for ex parte relief articulated in the case law. Plaintiff has not 20 avered in an affidavit or declaration that she informed or made attempts to inform 21 Defendant of Plaintiff’s intent to file the present Application. Additionally, she has not 22 argued why she should not be required to inform Defendant about her request. Therefore, 23 the Court finds Plaintiff’s Application is procedurally deficient and DENIES WITHOUT 24 PREJUDICE the Application. 25 Accompanying Plaintiff’s Ex Parte Application is Plaintiff’s Exhibit 15 (ECF No. 26 25-1). The documents included in Plaintiff’s Exhibit 15 contain the full name of the minor 27 Plaintiff. As the Court has previously instructed (ECF No. 3), pursuant to this Court’s 28 General Order No. 514, “counsel or parties shall be required to remove or redact the . . . 1 || Names of Minor Children. If the involvement of a minor child must be mentioned, only 2 || the initials of that child should be used.” See also Fotinos v. Fotinos, No. C 12-953 CW, 3 |}2014 WL 546083, at *5 (N.D. Cal. Feb. 7, 2014), aff'd, 644 F. App’x 793 (9th Cir. 2016) 4 || (striking filings that improperly included minor child’s name). Accordingly, the Court sua 5 ||sponte STRIKES Plaintiff’s Exhibit 15 (ECF No. 25-1). 6 In light of Plaintiff’s representation that she has filed a Motion for Clarification with 7 Office of Administrative Hearings, the Court ORDERS Plaintiff to file with the Court 8 ||OAH’s written decision on Plaintiff's Motion for Clarification within three days of 9 || issuance. 10 IT IS SO ORDERED. 11 ||Dated: December 2, 2021 tt 12 pee Janis L. Sammartino 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28