United States District Court, C.D. California
ORDER RE: EX PARTE APPLICATION TO STRIKE
GARY ALLEN FEESS, District Judge.
The Court is in receipt of Plaintiff Advanced media Networks, LLC's ("Plaintiff" or "AMN") ex parte application requesting the court to strike the declaration of Jonathan Pearce ("Pearce Decl.") and Exhibits thereto that Defendants submitted in support of their Reply to Defendants' Motion for Summary Judgment ("Exhibits"). (Docket No. 81 [Ex Parte Application ("Appl.")]; see also, Docket No. 75-1 [Pearce Decl.] and Docket Nos. 75-2, 75-3, 75-4, 75-5, 75-6, 75-7, 75-8, 75-9, 75-10, 75-11, 75-12 [Exhibits 1 and 2, Reexamination Requests ("Reexam. Reqs.")].)
As explained below, the Court declines to strike the Pearce Declaration and Exhibits, but GRANTS the application to the extent that the Court will received the materials for the limited purpose of rebutting evidence as explained below. Additionally, the Court DENIES Plaintiff's request to submit a sur-reply, finding it is solely based on Plaintiff's unfounded fear of improper action by the federal circuit court.
A. LEGAL STANDARD
1. EX PARTE RELIEF
To obtain ex parte relief, a party must show that: (1) it will be irreparably harmed but for ex parte relief; and (2) it is without fault in creating the need for ex parte relief. Mission Power Eng'g Co. v. Cont'l Cas. Co. , 883 F.Supp. 488, 492 (C.D. Cal. 1995). Additionally, continuing the hearing date would require the Court to modify the current scheduling and case management order. "A schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). Rule 16(b)'s "good cause" standard "focuses on the reasonable diligence of the moving party." Noyes v. Kelly Svs. , 488 F.3d 1163, 1174 n.6 (9th Cir. 2007). "If the party seeking the modification was not diligent, the inquiry should end' and the motion to modify should not be granted." Zivokovic v. S. Cal. Edison Co. , 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 609 (9th Cir. 1992)).
2. EVIDENCE OFFERED IN REPLY BRIEF
"It is well established in this circuit that [t]he general rule is that appellants cannot raise a new issue for the first time in their reply briefs." Martinez-Serrano v. I.N.S. , 94 F.3d 1256, 1259 (9th Cir. 1990) (quoting Eberle v. City of Anaheim , 901 F.2d 814, 818 (9th Cir. 1990)). "A district court may refuse to consider new evidence submitted for the first time in a reply if the evidence should have been presented with the opening brief." Wallace v. Countrywide Home Loans, Inc., 2009 WL 4349534, at *7 (C.D. Cal. 2009). "Evidence submitted in direct response to evidence raised in the opposition, however, is not new.'" In re ConAgra Foods, Inc. 2014 WL 4104405, at *33 n. 87 (C.D. Cal. August 1, 2014) (relying on Edwards v. Toys "R" US , 527 F.Supp.2d 1197, 1205 n.31 (C.D. Cal. 2007) ("Evidence is not new, ' however, if it is submitted in direct response to proof adduced in opposition to a motion") and Terrell v Contra Costa County, 232 Fed.App'x. 626, 629 n.2 (9th Cir. Apr. 16, 2007) (Unpub. Disp.) (Evidence adduced in reply was not new where "[t]he Reply Brief addressed the same set of facts supplied in [non-movant's] opposition to the motion but provides the full context to [non-movant's] selected recitation of the facts"); see also, C.D. Cal. L.R. 7-10 ("A moving party may... serve and file a reply memorandum, and declarations or other rebuttal evidence.").
Plaintiff claims that the Reexamination Requests attached as exhibits to the Pearce Declaration improperly attempt to use the Reply to put before the Court new issues that were not raised in the Opposition Memorandum to Defendants' motion for summary judgment. (Appl. at 1.) Defendants contend that they acted properly because the Reexamination Requests rebut Plaintiff's assertion in its opposition regarding Defendants' purported failure to file those requests ...