UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 24, 2012
RUBEN PEREZ, MICHAEL MOORE AND BRIGETTE MOORE, PLAINTIFF,
VEZER INDUSTRIAL PROFESSIONALS, INC., A CALIFORNIA CORPORATION AND DOES 1-50 INCLUSIVE, DEFENDANTS.
VEZER INDUSTRIAL PROFESSIONALS, INC., THIRD-PARTY PLAINTIFF,
PINPOINT HOLDINGS, INC., A CORPORATION; B2 GOLD, A CANADIAN CORPORATION, AND CENTRAL SUN MINING, INC., THIRD-PARTY DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
On January 10, 2012, counsel for Defendant and Third-Party Plaintiff Vezer Industrial Professionals, Inc. ("Vezer") filed an ex parte application to strike Plaintiff's Cross-Motion for Summary Judgment, filed January 5, 2012 on grounds that Plaintiff's Cross-Motion violates the terms of the Court's Pretrial Scheduling Order ("PTSO") in this matter. Vezer's ex parte application is now before the Court for adjudication.
Vezer correctly points out that the operative PTSO in this matter, as amended at the request of the parties on February 25, 2011, calls for Plaintiffs to file their dispositive motion by November 23, 2011, to be followed by Defendants' corresponding cross-motions on December 14, 2011. Procedurally, however, that is not what actually happened. Defendants, rather than Plaintiffs, filed the first round of summary judgment motions. Under Local Rule 230(e), Plaintiffs may timely file a cross-motion in response to Defendants' motions at the time designated for opposition, so long as the general subject matter of the cross-motion is "related" to the original motion. Here, since all the motions involve the same disputed liability issues, there can be no question that they are related for purposes of Rule 230. Therefore, under the Local Rules, Plaintiffs' Cross-Motion in response to Defendants' motions was timely, and the Court may continue all related motions in order to afford the opportunity for full briefing. Moreover, to the extent that the scheduling constraints in this particular case may have arguably deviated from the provisions of our Local Rules, those constraints did not specifically contemplate the actual order of filing herein.
Any resolution of that initial inquiry in Plaintiffs' favor still leaves the undisputed fact that the February 25, 2011 Order (ECF No. 73) calls for Plaintiffs' opposition to be filed by December 28, 2011. Consequently, even if Plaintiffs were permitted to file a cross-motion in lieu of that opposition, that cross-motion was not in fact filed until January 5, 2012, approximately a week late. There, is, however, yet another complicating factor. By order dated December 15, 2011, the Court continued the hearing on Defendants' summary judgment motions by one week, from January 19, 2012 to January 26, 2012. Plaintiffs' cross-motion, as filed on January 5, 2012, generally comported with the one-week continuance of the original hearing (even though the cross-motion was technically filed eight days after December 28, 2011) despite the fact that in continuing the hearing date the Court did not continue any other deadline associated with the case.
The Court is understandably reluctant to countenance any breach of its scheduling orders, and nothing in this order should be interpreted as condoning such behavior. Nonetheless, as enumerated above, the orders in place here could be interpreted as both confusing and not expressly applicable to what transpired in this matter. The Christmas and New Year's holidays falling between the deadlines in question added still further complication. In the interest of permitting this case to be heard on its merits the Court will permit Plaintiffs' cross-motion for summary judgment to be heard along with Defendants' own corresponding motions.
Defendant Vezer's Ex Parte Application to Strike Plaintiffs' Motion for Summary Judgment (ECF No. 172) is accordingly DENIED. Given Vezer's claim that its ability to respond to Plaintiffs' Motion at such short notice was severely compromised, however, the Court will continue all currently pending motions in this case (ECF Nos. 137, 140, 141, 154 and 165) to March 8, 2012 at 2:00 p.m. The deadline for Defendants' response to Plaintiffs' Cross-Motion shall be calculated in response to that continued hearing date, and any response already filed in anticipation of the January 26, 2012 hearing date may be amended accordingly.
IT IS SO ORDERED.
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