United States District Court, S.D. California
ORDER: (1) GRANTING MOTIONS FOR ORAL ARGUMENT (ECF No. 114, 117); (2) SETTING ORAL ARGUMENT (ECF NOS. 50, 91, 113, 115, 116, 121, 138); (3) DENYING WITHOUT PREJUDICE MOTION TO SEAL (ECF NO. 108); (4) DENYING IN PART AND GRANTING IN PART EX PARTE MOTION FOR LEAVE TO FILE A SUR-REPLY (ECF NO. 130); (5) DENYING EX PARTE MOTION TO FILE CORRECTED JOINT STATEMENT (ECF NO. 132); AND (6) DENYING EX PARTE MOTION FOR ORDER SHORTENING TIME (ECF NO. 139)
CYNTHIA BASHANT, District Judge.
Pending before the Court are motions to strike (ECF Nos. 50, 116, 121) and a motion for summary judgment (ECF No. 115) filed by defendant and counterclaimant Launchworks Life Services, LLC ("Launchworks"); and a motion to strike affirmative defenses (ECF No. 91), a motion for summary judgment (ECF No. 113), and a motion for preliminary injunction (ECF No. 138) filed by plaintiff and counterdefendant Benchmark Young Adult School, Inc. ("Benchmark"). Both parties have also filed motions for oral argument in relation to their respective motions for summary judgment. (ECF Nos. 114, 117.)
Also pending before the Court is a motion to file documents under seal (ECF No. 108), an ex parte motion for leave to file a sur-reply in opposition to Launchworks' motion for summary judgment (ECF No. 130), and an ex parte motion for an order shortening time and oral argument on Benchmark's motion for preliminary injunction (ECF No. 139) filed by Benchmark; and an ex parte motion for leave to file a corrected joint statement of material facts relating to the cross-motions for summary judgment (ECF No. 132) filed by Launchworks.
I. ORAL ARGUMENT
Having read and considered the moving papers, and good cause appearing, the Court GRANTS the requests for oral argument (ECF Nos. 114, 117). Accordingly, the Court ORDERS the parties to appear on May 27, 2015 at 2:00 p.m. in Courtroom 4B for oral argument to address the motions. See Civ. L.R. 7.1(d)(1). The Court also ORDERS the parties to appear for oral argument to address all remaining pending motions. ( See ECF Nos. 50, 91, 113, 115, 116, 121, 138.)
II. MOTION TO SEAL
"Historically, courts have recognized a general right to inspect and copy public records and documents, including judicial records and documents.'" Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Nixon v. Warner Communs., Inc., 435 U.S. 589, 597 & n. 7 (1978)). "Unless a particular court record is one traditionally kept secret, ' a strong presumption in favor of access' is the starting point." Id. (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to dispositive motions bear the burden of overcoming the presumption with "compelling reasons" that outweigh the general history of access and the public policies favoring disclosure. Id. at 1178-79.
Records attached to non-dispositive motions, however, are not subject to the strong presumption of access. Id. at 1179. Because the documents attached to non-dispositive motions "are often unrelated, or only tangentially related, to the underlying cause of action, " parties moving to seal must meet the lower "good cause" standard of Rule 26(c). Id. (internal quotations omitted). "[A] particularized showing of good cause' under Federal Rule of Civil Procedure 26(c) is sufficient to preserve the secrecy of sealed discovery documents attached to non-dispositive motions." In re Midland Nat. Life Ins. Co. Annuity Sales Practices Litig., 686 F.3d 1115, 1119 (9th Cir. 2012); see also Kamakan a, 447 F.3d at 1180 (requiring a "particularized showing" of good cause); Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A blanket protective order is not itself sufficient to show "good cause" for sealing particular documents. See Foltz, 331 F.3d at 1133; Beckman Indus., Inc., 966 F.2d at 476; San Jose Mercury News, Inc. v. U.S. Dist. Ct., N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999).
Benchmark seeks to file excerpts of certain deposition transcripts under seal submitted in support of its motion for summary judgment. (ECF No. 108.) A summary judgment motion is a dispositive motion and therefore Benchmark must demonstrate compelling reasons for sealing the documents. See Kamakana, 447 F.3d at 1181. In support of its motion to seal, Benchmark relies exclusively on the Protective Order entered in this case (ECF No. 20). (ECF No. 108 at pp. 1-2.) A blanket protective order, however, is insufficient to meet the "compelling reasons" standard. See Foltz, 331 F.3d at 1136; Kamakan a, 447 F.3d at 1183. Standing alone, a blanket protective order is not even sufficient to meet the lower "good cause" standard. Under the "compelling reasons" standard, the moving party must present "articulable facts identifying the interests favoring continued secrecy" and "show that these specific interests overc[o]me the presumption of access by outweighing the public interest in understanding the judicial process." Kamakan a, 447 F.3d at 1179-81 (internal quotation marks omitted). Due to its failure to meet the "compelling reasons" standard, the Court DENIES Benchmark's motion to seal WITHOUT PREJUDICE.
III. EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY
Benchmark moves ex parte for leave to file a sur-reply in opposition to Launchworks' motion for summary judgment. (ECF No. 130.) Benchmark argues there is good cause to file its proposed sur-reply "because [Launchworks] cited new authorities and evidence for the first time in its Reply brief." (Id. at p. 2, lines 11-12.) Specifically, Benchmark asserts Launchworks argued for the first time in its Reply that it can prevail on its "innocent user defense" and attached to its Reply new deposition excerpts that are misleading. (Id. at pp. 2-3.) Launchworks filed an opposition to the ex parte motion arguing that it did not raise any new arguments or rely on any new evidence for the first time in its Reply. (ECF No. 134.)
The Court agrees with Launchworks that the "innocent user defense" was not raised for the first time in its Reply. To the extent Benchmark desires to further address the arguments raised in the papers on the "innocent user defense, " it may do so at oral argument on the motion.
The Court also agrees that Launchworks' citation to Bruce Garrison's testimony in its Reply was in response to Benchmark's use of Mr. Garrison's testimony in its Opposition to argue that "[t]here is a genuine factual dispute as to whether Defendant actually knew about Plaintiff's business when it adopted the name Benchmark." ( See ECF No. 120 at pp. 2-4.) However, the parties cite to different portions of Mr. Garrison's testimony and the excerpt Benchmark desires to submit with its sur-reply was not previously cited nor addressed. Where new evidence is presented in a reply, a district court should not consider the new evidence without giving the non-movant the opportunity to respond. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996); El Pollo Loco, ...