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Fernandez v. City of Los Angeles

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 16, 2009

ARTHUR MICHAEL FERNANDEZ, PLAINTIFF,
v.
CITY OF LOS ANGELES; COUNTY OF LOS ANGELES; LOS ANGELES SHERIFF'S DEPARTMENT, DEFENDANTS.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION TO FILE A FIRST AMENDED COMPLAINT [Ex Parte Application filed on July 9, 2009]

This matter comes before the Court on Plaintiff Arthur Michael Fernandez's Ex Parte Application to File a First Amended Complaint. Defendants City of Los Angeles, County of Los Angeles, and the Los Angeles Sheriff's Department oppose this ex parte application.

Plaintiff filed this suit on July 31, 2008. On January 5, 2009, the Court issued its Scheduling Order, which set a May 1, 2009 deadline within which to amend or join parties. Dkt. No. 33 (January 5, 2009). On January 5, 2009, Plaintiff also received discovery, including the arrest reports that identified all defendants plaintiff seeks to add to his complaint. On April 27, 2009, Plaintiff's counsel and counsel for the County defendants filed a "stipulation" which sought to continue the deadline to join parties or amend the complaint from May 1, 2009 to May 27, 2009.*fn1

On May 28, 2009, counsel for Plaintiff filed another "stipulation" that sought to continue the deadline to amend the pleadings to July 11, 2009. City of Los Angeles filed an opposition explaining that the stipulation in fact did not represent a stipulation among all parties. The Court denied the stipulation on May 29, 2009, and Plaintiff thereafter filed an ex parte application seeking an extension of the deadline to amend to July 11, 2009. The City of Los Angeles opposed the ex parte application. The Court granted Plaintiff's application on June 10, 2009, but included a note that there would be "NO FURTHER CONTINUANCES." Dkt. No. 48.

Plaintiff did not file a noticed motion seeking to join additional parties or amend his Complaint. Instead, two days before the July 11, 2009 deadline, Plaintiff filed this ex parte application seeking leave to amend. Plaintiff's ex parte application provides no explanation as to why Plaintiff could not have filed a regularly noticed motion. It also does not include as an attachment a copy of the proposed amended pleading as required by the Local Rules of this Court. C.D. Cal. L.R. 15-1. Instead, Plaintiff's ex parte application cites the Rule 15(a) standard and states the proposed substituted parties in counsel's declaration. See Muller Decl. ¶ 3. The City of Los Angeles and the County Defendants each filed oppositions to Plaintiff's ex parte application. See Dkt. Nos. 56-57 (July 10, 2009). As of the date of this Order, Plaintiff has not filed a Reply.

Ex parte relief is generally disfavored when relief may be had through a regularly-noticed motion. They will only be granted upon an adequate showing of good cause or irreparable injury to the party seeking relief. Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). The moving party must establish that it is without fault in creating the crisis requiring ex parte relief or that the crisis occurred as a result of excusable neglect. Id. Plaintiff has not made any showing as to why ex parte relief is warranted here. At Plaintiff's request, the Court twice extended the original deadline to more than two months beyond the original May 1 deadline, over the objection of the City of Los Angeles. All defendants have represented to the Court that the individuals Plaintiff seeks to name in the First Amended Complaint were disclosed to Plaintiff months prior to the original May 1, 2009 deadline. In these circumstances, the Court cannot find that Plaintiff has shown good cause for ex parte relief.

The Court therefore denies the application. Of course, Plaintiff is not precluded from seeking leave to amend his pleadings or join additional parties after the deadline through a regularly noticed motion and in accordance with the proper standard for such relief. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).

IT IS SO ORDERED.


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