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Casey Gerry Schenk Francavilla Blatt & Penfield v. Estate of Cowan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 6, 2010

CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD ET AL. PLAINTIFFS,
v.
ESTATE OF ROBERT COWAN ET AL., DEFENDANTS;

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

AND RELATED COUNTERCLAIM AND CROSS-CLAIM.

ORDER GRANTING EX PARTE APPLICATION TO EXTEND TIME TO RESPOND TO THE COMPLAINT AND THE CROSS-CLAIM

On June 30, 2010 Defendants Suzanne Dimeff ("Dimeff") and Oleta L. Cowan Trust ("Trust") filed an ex parte application requesting an extension of time to respond to the complaint and the "Counter/Cross Claim" of Defendant Estate of Robert Cowan ("Estate"). This is their fourth request for extension of time.

In this interpleader action Plaintiffs request the court to determine how to distribute the late Robert Cowan's share of the attorney's fees and costs earned in the Exxon Valdez litigation among three claimants -- the Estate, Robert Cowan's sister Suzanne Dimeff, and Robert Cowan's late mother's trust, the Oletta L. Cowan Trust. These claimants are currently involved in probate litigation*fn1 in the Superior Court for the State of Alaska which involves, among other things, their respective right to a distribution of Robert Cowan's portion of the Exxon Valdez attorney's fees and costs. In that litigation, pursuant to the Estate's motion, the Alaska probate court enjoined Dimeff and the Trust from filing claims in other proceedings. According to Dimeff and the Trust, the order precludes them from filing answers and their own counterclaim against Plaintiffs and cross-claim against the Estate. While they filed a motion to vacate the order in probate action,*fn2 the order so far has not been vacated.*fn3 (Ex parte App. at 2; Decl. of Don Howrath field June 30, 2010 ("Howrath Decl.") at 1.)

Based on the foregoing, Dimeff and the Trust request another extension of time to respond to the complaint and the Estate's cross-claim. While Plaintiffs allegedly agreed to an extension until July 15, 2010, the Estate would prefer a stay of this case. (Howrath Decl. at 2.)

In addition to requesting the extension of time to respond, Dimeff and the Trust suggest that this court should sua sponte take action to enjoin the Estate's activities or the probate action in Alaska. (Ex parte App. at 3, 4; Howrath Decl. at 1.) They have not filed any motions requesting this type of relief. If they want the court to issue an order enjoining the probate action or the Estate's related activities, they must do so by a motion and state precisely what relief they seek. See Fed. R. Civ. Proc. 7(b). If they choose to file such motion, they should discuss, in addition to all other pertinent issues, the probate exception to federal jurisdiction in order to define the scope of any appropriate relief. See Marshall v. Marshall, 547 U.S. 293 (2006); see also Franklin Life Ins. Co. v. Mast, 435 F.2d 1038, 1042 (9th Cir. 1970) (interpleader).*fn4

Based on the foregoing, the court finds good cause pursuant to Federal Rule of Civil Procedure 6(b) and Civil Local Rule 12.1, to GRANT the ex parte application. No later than July 15, 2010 Defendants Suzanne Dimeff and Oleta L. Cowan Trust shall file and serve responses to the complaint and the cross-claim. If they want the court to issue injunctive or any other relief, they must file an appropriate motion.

IT IS SO ORDERED.

HON. BERNARD G. SKOMAL UNITED STATES MAGISTRATE JUDGE


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