This miscellaneous action, in which defendant is pro se, was referred to the undersigned under Eastern District of California Local Rule 302(a). Currently scheduled for hearing on May 4, 2011 are plaintiff's motion to appoint a receiver, Dckt. No. 24, and defendant and third party Karen Mix's motion to quash, motion for a protective order, and motion for sanctions, Dckt. Nos. 29 and 37.
On April 28, 2011, defendant filed an ex parte application for an order shortening time to hear a motion to stay these judgment enforcement proceedings pending appeal and for a temporary restraining order. Dckt. Nos. 52, 53. According to defendant, currently pending before the Ninth Circuit Court of Appeals is a decision on whether the judgment plaintiff seeks to enforce herein should have been discharged in defendant's bankruptcy proceedings. Dckt. No. 53 at 1.
Defendant contends that good cause supports the application to shorten time because allowing the motion to stay to be heard on the same date as the other matters currently scheduled "would preserve judicial resources" and is necessary since a decision on the motion to stay "could affect the outcome of that hearing." Dckt. No. 52 at 2.Further, defendant contends that "[f]ailing to decide the motion could result in Smith losing access to his property and losing ownership." Id. Defendant therefore requests that the court schedule the motion to stay to be heard on May 4, 2011, along with the other mattes previously set for hearing on that day. Id. Defendant notes that he unsuccessfully sought a stipulation from plaintiff to hear the matter on shortened time. Id.
Eastern District of California Local Rule 144(e) provides that "[a]pplications to shorten time shall set forth by affidavit of counsel the circumstances claimed to justify the issuance of an order shortening time [and] will not be granted except upon affidavit of counsel showing a satisfactory explanation for the need for the issuance of such an order and for the failure of counsel to obtain a stipulation for the issuance of such an order from other counsel or parties in the action." Although this court is unsure why defendant waited until less than one week before the May 4 hearing to file the motion to stay, in light of the impact the motion to stay may have on the matters already scheduled to be heard on May 4, the application will be reluctantly granted.
Accordingly, IT IS ORDERED that:
1. Defendant's application for an order shortening time, Dckt. No. 52, is granted.
2. Defendant's motion to stay and motion for a temporary restraining order, Dckt. No. 53, is set for hearing on May 4, 2011, at 10:00 a.m. in Courtroom No. 24.
3. Plaintiff shall file an opposition or a statement of non-opposition to the motion to stay and motion for a temporary restraining order no later than 10:00 a.m. on Tuesday, May 3, 2011.
4. Defendant may file a reply to plaintiff's opposition, if any, no later than 5:00 p.m. on Tuesday, May 3, 2011.
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