EpicentRx, Inc. v. Carter ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EPICENTRX, INC., a Delaware Case No.: 20-CV-1058 TWR (LL) corporation, 12 ORDER DENYING PLAINTIFF’S Plaintiff/Counter-Defendant, 13 EX PARTE APPLICATION v. OBJECTING TO MAGISTRATE 14 JUDGE LOPEZ’S DISCOVERY COREY A. CARTER, M.D., 15 ORDER Defendant/Counter-Claimant. 16 (ECF No. 137) 17 18 Presently before the Court is Plaintiff and Counter-Defendant EpicentRx’s Ex Parte 19 Application Pursuant to F.R.C.P. Rule 72, Local Rule 7.2, and Civil Standing Order § II, 20 to Object to Magistrate’s Discovery Order Denying Protective Order [ECF 134] (“Ex Parte 21 App.,” ECF No. 137). Defendant and Counter-Claimant Corey A. Carter, M.D. called 22 chambers to inform the Court that he intended to file an opposition; however, given that 23 the underlying depositions are scheduled to begin on December 8, 2021, the Court 24 DENIES Plaintiff’s Ex Parte Application both procedurally and on the merits without the 25 benefit of additional briefing. 26 Procedurally, “opportunities for legitimate ex parte applications are extremely 27 limited.” See Maxson v. Mosaic Sales Sols. U.S. Operating Co., LLC, No. 2:14-CV-02116- 28 APG, 2015 WL 4661981, at *1 (D. Nev. July 29, 2015) (quoting In re Intermagnetics Am., 1 Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). Among other things, the moving party must 2 establish that it “is without fault in creating the crisis that requires ex parte relief, or that 3 the crisis occurred as a result of excusable neglect.” See Mission Power Eng’g Co. v. Cont’l 4 Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). Here, Defendant noticed the underlying 5 depositions on November 3, 2021, (see ECF No. 130 ¶ 21), only after Plaintiff failed timely 6 to offer proposed dates in November or early December 2021. (See ECF No. 132-1 7 ¶¶ 7–10.) Nonetheless, Plaintiff failed to file the underlying Ex Parte Application for 8 Protective Order (the “Underlying Motion”) until December 1, 2021. (See generally ECF 9 No. 129.) Further, although the Honorable Linda Lopez denied Plaintiff’s Underlying 10 Motion on December 3, 2021, (see generally ECF No. 134 (the “Magistrate’s Order”)), 11 Plaintiff did not file the instant Ex Parte Application until December 7, 2021, (see 12 generally ECF No. 137), the day before the first of the noticed depositions. (See ECF No. 13 137-1 ¶ 3.) Although a prerequisite to seeking ex parte relief, Plaintiff makes no effort to 14 explain why it is without fault for this purported “crisis” of its own making. This alone 15 suffices to deny Plaintiff’s Ex Parte Application. 16 Review on the merits does not compel a different result. Magistrate Judge Lopez’s 17 decision must “be upheld unless it is ‘clearly erroneous or contrary to law.’” See Ctr. for 18 Biological Diversity v. Fed. Highway Admin., 290 F. Supp. 2d 1175, 1199 (S.D. Cal. 2003) 19 (quoting Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A)). Plaintiff makes no effort to 20 address this standard, instead arguing that Magistrate Judge Lopez “focused primarily on 21 the length of time between Defendant’s request for dates and the date EpicentRx offered a 22 deposition schedule[] but did not address the specific reasons why the witnesses and/or 23 counsel could not appear in December.” (See Ex Parte App. at 4.) Magistrate Judge Lopez 24 was well within her discretion, however, to deny the Underlying Motion on that basis. 25 Federal Rule of Civil Procedure 30(b)(1) requires that Defendant provide only “reasonable 26 written notice” for a deposition. Nonetheless, Defendant attempted to obtain deposition 27 dates that worked for Plaintiff’s counsel and witnesses well in advance of December 2021. 28 Rather than timely respond and discuss its reservations, however, Plaintiff forced 1 || Defendant’s hand. As Magistrate Judge Lopez noted, it is Plaintiff who bears the burden 2 || of establishing good cause for a protective order. (See Magistrate Order at 2 (citing Phillips 3 rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); 4 || Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).) Magistrate Judge Lopez 5 determined in her sound discretion that Plaintiff had failed to meet that burden, and the 6 || Court declines to disturb that discretion here. 7 “In the alternative ... , EpicentRx requests this Court modify the [Magistrate’s] 8 Order to provide that the depositions of may proceed via remote means to accommodate 9 ||counsel’s and the witnesses’ valid concerns regarding health and travel so close to the 10 ||holidays during a pandemic.” (See Ex Parte App. at 8.) Although this request 1s 11 ||reasonable, Plaintiff failed to request this relief from Magistrate Judge Lopez as to 12 || Plaintiffs employees Scott Caroen, Bryan Oronsky, Meaghan Stirn, Tony Reid, and 13 || Franck Brinkhaus and third party Nando Carbonel. Accordingly, Plaintiff's request is not 14 proper subject of a motion under Federal Rule of Civil Procedure 72(a). The Court 15 || therefore DENIES Plaintiff's Ex Parte Application. 16 IT IS SO ORDERED. 17 Dated: December 7, 2021 —— : [5d Honorable Todd W. Robinson 20 United States District Court 21 22 23 24 25 26 27 28