The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING EX PARTE APPLICATION FOR MOTION HEARING CONTINUANCE [Dkt No. 31]
This matter is before the court on Plaintiffs' Ex Parte Application To Continue Hearing On Plaintiffs' Motion For Remand in this putative class action asserting violations of the California Labor and Business and Professions Codes.
Defendant Electronic Data Systems Corporation ("EDS") removed the action to federal court on September 20, 2007 in reliance on federal jurisdiction allegedly conferred pursuant to the Class Action Fairness Act of 2005 (28 U.S.C. § 1332(d)) ("CAFA"), diversity of citizenship, and 28 U.,S.C. §§ 1441(a), 1446. Plaintiffs filed a Motion For Remand on September 25, 2007, with a November 13, 2007 hearing date. Plaintiffs represent they filed the remand motion "at the earliest possible date" to avoid adjudication of "any merits issue prior to determining whether [the court] has subject matter jurisdiction," but with the intention "to simultaneously seek pre-hearing discovery by ex parte application" and, if necessary, to "seek a continuance of the hearing on the [Remand] Motion to permit Plaintiffs to utilize the products of such" discovery. Dkt No. 4, 5:10-14. Plaintiffs applied ex parte to the magistrate judge assigned to this case, Hon. Nita L. Stormes, also on September 25, 2007, for leave to conduct discovery in advance of the remand hearing. The parties do not dispute two of the three CAFA requirements for federal jurisdiction over this dispute are satisfied (i.e., size of the putative class and diversity of citizenship), but they dispute the amount in controversy. EDS alleges with a demonstration in its Notice of Removal that the amount the Complaint places in controversy exceeds $10,000,000, plus attorneys' fees and expenses. Plaintiffs contend the $5,000,000 threshold for federal CAFA jurisdiction is not satisfied.
By Order entered October 3, 2007, Judge Stormes granted Plaintiffs' request for leave to conduct jurisdictional discovery on the amount in controversy issue, over EDS's opposition. Dkt No. 18. However, she reasonably limited "not only the scope and duration of jurisdictional discovery," but also restricted "the discovery method to the use of interrogatories only, in the interest of judicial economy and in an effort to lessen the burden that this discovery may place on the parties." Dkt No. 18, 7:9-12. She authorized each side to propound a single set of interrogatories not to exceed ten (10) in number, directed specifically towards establishing the amount in controversy. She ordered the expedited discovery be completed within thirty (30) days of the date of her Order. Dkt No. 18, 7:18-20.
In consideration of that discovery authorization, the undersigned District Judge continued the hearing of Plaintiff's Motion To Remand from November 13, 2007 to December 3, 2007. Dkt No. 22. The briefing schedule was correspondingly continued, so that EDS' Opposition is currently due November 19, 2007 and Plaintiffs' Reply November 26, 2007. Plaintiffs' counsel, David J. Gallo, Esq., now moves ex parte to continue the hearing date and briefing schedule for three weeks or, alternatively, for five weeks. He represents the requested three-week extension is not opposed by defense counsel, in consideration of surgery he learned on October 31, 2007 he needs to undergo shortly before Plaintiffs' Reply papers are due to be filed, with a recovery period anticipated to last approximately ten (10) days before resumption of half-time work and fourteen (14) to twenty-one (21) days before resumption of full-time work. Mr. Gallo represents EDS opposes the alternative five-week continuance. He seeks the longer, alternative continuance on the basis of a possible need for a supplemental response period after Judge Stormes' December 11, 2007 hearing of Plaintiffs' Motion To Compel addressing two of the interrogatories. EDS counsel has telephonically confirmed the accuracy of Mr. Gallo's representations of its position and joins in Mr. Gallo's request that should any continuance be granted, the remand motion briefing schedule be correspondingly continued.
For good cause shown, and in consideration of the non-opposition to a three-week continuance, IT IS HEREBY ORDERED the hearing of Plaintiffs' Motion To Remand is continued a second time, from December 3, 2007 to December 31, 2007 at 10:30 a.m., with a corresponding continuance of the Civ.L.R. 7.1(e) briefing schedule. IT IS FURTHER ORDERED no further continuances of the remand motion hearing will be granted absent a showing of extraordinary good cause.
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