UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 1, 2011
CHART SEQUAL TECHNOLOGIES, INC.
APPLICATION TO SCHEDULE EARLY MICHAEL STERN AND DIGIFLO, INC.
The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
[Docket No. 12.]
ORDER DENYING EX PARTE
On February 24, 2011, Plaintiff filed an ex parte application for an Early Neutral Evaluation ("ENE") in this patent case. [Docket No. 12.] On February 28, 2011, Defendants timely filed an Opposition to the Ex Parte Application [Docket No. 13.] and Plaintiff filed a Reply in support of the Ex Parte Application. [Docket No. 14.] Plaintiff believes that an ENE at this time would be an efficient use of the resources of the court and the parties. Defendants object to the burden of having to travel from Washington to appear at an ENE in San Diego before resolution of their pending Motion to Dismiss. Defendants argue in the Motion to Dismiss: 1) this court lacks personal jurisdiction; 2) this case should be transferred to the Western District of Washington; and 3) this case should be dismissed for failure to state a claim. [Docket No. 11.] In Reply, Plaintiff argues that travel to the Southern District of California is not unduly burdensome, and in fact could be cheaper than filing a Reply brief and appearing in this District for the hearing on the Motion to Dismiss.
The Local Rules provide that an ENE shall be held within 45 days of the filing of an Answer .
The Local Rules also provide for an ENE prior to the filing of an Answer:
At any time after the filing of a complaint and before an answer has been filed, counsel for any party may make a request in writing to the judicial officer assigned to supervise discovery in the case to hold an early neutral evaluation conference, discovery conference or status/case management conference. Copies of the request must be sent to counsel for the parties and the parties whose addresses are known to the requesting counsel. Upon receiving such request, the judicial officer will examine the circumstances of the case and the reasons for the request and determine whether any such conference would assist in the reduction of expense and delay the case. The judicial officer will hold such conferences as he or she deems appropriate.
Civ. L.R. 16.1(c)(1).
In light of Defendants' objections to personal jurisdiction, and to travel at this time, the circumstances of this case do not warrant the scheduling of an ENE at this time.
Accordingly, It Is Hereby Ordered that:
1. The Ex Parte Application to Schedule an Early Neutral Evaluation is Denied without prejudice; and
2. If the case proceeds in this district and an Answer is filed, an ENE will be scheduled in accordance with the Local Rules of the Southern District of California.
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