United States District Court, N.D. California
JERRY AND DEANNA HAYNIE, individually as successors in interest and heirs at law, Plaintiffs,
DANIEL RIPPEE, individually; THE PRUDENTIAL INSURANCE COMPANY OF AMERICA; FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY; DOES 1-20; and all persons unknown claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiffs' ownership, Defendants.
ORDER REGARDING PRUDENTIAL'S EX PARTE APPLICATION
FOR AN EXTENSION OF TIME TO RESPOND TO THE COMPLAINT
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
action removed based on ERISA preemption, defendant
Prudential has filed an ex parte application for an
extension of time to respond to plaintiffs' complaint.
The application is “made on the grounds that due to a
co-defendant's removal of the action from state court to
federal court, Prudential's time to respond to the
complaint was accelerated from January 9, 2020[, ] to January
2, 2020” (Dkt. No. 7 at 2). Nevertheless, Prudential
seeks to postpone its time to respond until February 3. To
the extent stated herein, Prudential's application is
being served with the state-court summons and complaint on
November 25, Prudential's original deadline to respond
was December 25. While in state court, plaintiffs granted
Prudential a fifteen-day extension, postponing
Prudential's deadline until January 9. On December 26,
defendant Fidelity, with Prudential's consent, removed
this action to our district, purportedly accelerating
Prudential's time to respond to January 2. When
Prudential sought additional time to respond from plaintiffs,
it learned that plaintiffs' counsel was out of the
country with limited access to email until January 5. The day
its response was due, Prudential instead filed its ex
parte application seeking an extension not
until January 9, the date plaintiffs previously agreed to,
but rather until February 3, seventy days after Prudential
Rule 6-1(a) provides:
Parties may stipulate in writing, without a Court order, to
extend the time within which to answer or otherwise respond
to the complaint, or to enlarge or shorten the time in
matters not required to be filed or lodged with the Court,
provided the change will not alter the date of any event or
any deadline already fixed by Court order. Such stipulations
shall be promptly filed pursuant to Civil L.R. 5.
did not obtain a stipulation or even attempt to introduce the
email confirming the prior extension plaintiffs agreed to.
Instead, Prudential asserts that due to the demonstrated
professional courtesy of plaintiffs' counsel in granting
the first extension, “Prudential has no reason to
believe that if [plaintiffs' counsel] was available, she
would withhold consent or refuse to sign a stipulation in
this instance” (Decl. Millioen ¶ 11).
required to proceed outside of the adversarial context.
Prudential failed to comply with Local Rule 7-10, which
states (emphasis added):
[A] party may file an ex parte motion . . . only
if a statute, Federal Rule, local rule or Standing Order
authorizes the filing of an ex parte motion in the
circumstances and the party has complied with the
applicable provisions allowing the party to approach the
Court on an ex parte basis. The motion must
include a citation to the statute, rule or order which
permits the use of an ex parte motion to obtain the relief
authority was cited. Even so, Prudential's given
justification for proceeding ex parte is unavailing.
A review of the complaint Prudential has yet to respond to
shows at least one reason why plaintiffs' counsel would
refuse to stipulate to an extension past January 9. This
action was brought by two parents who lost their daughter on
April 25, 2019, alleging that Prudential and Fidelity should
not distribute their daughter's life insurance and 401k
funds to her ex-husband, Daniel Rippee. To that end,
plaintiffs allege that “[i]f the defendants distribute
the assets to Daniel, which they are in the process of doing,
the funds will be gone; causing imminent and irreparable
injury to Plaintiffs as Decedent's successors in interest
and heirs at law. Because of the urgency and importance of
the issues presented by the parties' dispute, it is
necessary and appropriate for the Court to resolve this
dispute by issuing a judicial declaration . . . .”
(Compl. ¶ 13). The alleged urgency suggests plaintiffs
might oppose a further extension, even if they previously
granted a fifteen-day extension. These allegations
additionally bely Prudential's contention that the
“requested extension will not prejudice any party and
will not delay the progress of the case” (Decl.
Millioen ¶ 13).
reasons stated herein, Prudential's request for an
extension of time until February 3 is
Denied. The parties' prior extension
agreement, however, will be honored. Absent the filing of a
signed stipulation agreeing to a later date, pursuant to
Local Rule 6-1(a), Prudential shall file its response to the
complaint by January 9 at noon.