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Victoria Mccarthy, Katherine Schmitt v. R.J. Reynolds Tobacco Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 18, 2011

VICTORIA MCCARTHY, KATHERINE SCHMITT, PLAINTIFFS,
v.
R.J. REYNOLDS TOBACCO CO., AND DOES 1-10, DEFENDANTS.

ORDER RE: EX PARTE APPLICATION TO CONTINUE MOTION

On July 11, 2011, defendant filed a post-trial motion, (Docket No. 117), that included citations to two LexisNexis cases, Estate of Gonzalez v. Hickman, 2007 U.S. Dist. LEXIS 84390 (C.D. Cal. June 28, 2007), and Davis v. Harris, 2006 U.S. Dist. LEXIS 88000 (C.D. Ill. Dec. 5, 2006). Plaintiffs' counsel apparently does not have a subscription to LexisNexis. Plaintiffs' counsel filed an opposition to the motion on August 15, 2011, (Docket No. 139), and on the same day asked defense counsel for copies of the two cases, which defense counsel provided. (Mehta Decl. ¶ 5 (Docket No. 141-1).) On August 17, 2011, plaintiffs' counsel filed an ex parte application seeking a one-week postponement of the hearing on defendant's post-trial motion, an opportunity to file a second opposition, and an order requiring defendant to provide to plaintiffs the two cases. (Docket No. 140.) Plaintiffs' counsel did not provide an explanation for his failure to request the cases until this time, twelve days before the hearing on defendant's motion.

Plaintiffs' counsel was apparently unable to find the two cases by searching by case name on Westlaw, where the court was easily able to find both cases, or by searching on Google Scholar, where the court was able to find Davis v. Harris, or by paying for access to LexisNexis. Plaintiffs' counsel also apparently failed to take advantage of the free LexisNexis service provided in the Sacramento County Public Law Library.

Any competent attorney should be able to get access to these cases, especially one who has held himself out as exceptionally competent in this field to the extent of requesting attorney's fees at an hourly rate of $375.00. The court will not postpone the hearing simply because plaintiffs' counsel cannot perform the basic legal research. Any legal argument regarding the cases can be made at the hearing on defendant's motion.

Plaintiffs' ex parte application to continue defendant's motion is therefore DENIED.

20110818

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