United States District Court, S.D. California
ORDER GRANTING PLAINTIFF LEAVE TO SEEK TO FILE
CONFIDENTIAL EXHIBITS UNDER SEAL AND GRANTING DEFENDANTS AN
OPPORTUNITY TO RESPOND TO UNTIMELY EVIDENCE (ECF No.
Janis L. Sammartino United States District Judge.
before the Court is Plaintiff Laura Lynn Hammett's Ex
Parte Motion to Submit Exhibits to be Seen in Camera to
Chambers (“Ex Parte Mot., ” ECF No. 98),
in which she “respectfully ask[s] the Court to make an
order granting leave to submit six (6) exhibits Plaintiff
intended to offer in camera at the hearing of October 24,
2019 that was vacated on October 17, 2019.”
Id. at 1-2. Ms. Hammett explains that “[t]he
exhibits were not offered with the other seventeen (17)
exhibits lodged as ECF No. 78-3 because they were marked
‘Confidential' before being transmitted to
Plaintiff by Patrick C. McGarrigle.” Id. at 2.
dramatic presentations of new evidence at court hearings may
seem commonplace based on depictions in television and film,
they are in actuality quite rare because due process affords
the other party the right to notice and an opportunity to
respond. See, e.g., Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985) (“The
essential requirements of due process . . . are notice and an
opportunity to respond. The opportunity to present reasons,
either in person or in writing, why proposed action should
not be taken is a fundamental due process
requirement.”); see also, e.g., In re
Speir, No. BAP CC-10-1383, 2011 WL 5838570, at *5
(B.A.P. 9th Cir. Sept. 26, 2011) (concluding that bankruptcy
court abused its discretion by accepting late-filed evidence
without allowing the other party the opportunity to respond);
Nguyen v. McHugh, 65 F.Supp.3d 873, 887 (N.D. Cal.
2014) (striking the plaintiff's late-filed errata to her
opposition “because it would prejudice Defendant if
Defendant was forced to respond in reply to a lengthy and
untimely filing one day before the deadline for the
reply”), aff'd, 722 Fed.Appx. 688 (9th
Cir. 2018); BSD, Inc. v. Equilon Enterprises, LLC,
No. C 10-5223 SBA, 2013 WL 12306493, at *2 (N.D. Cal. Mar.
25, 2013) (concluding that late-filed evidence depriving
responding property of opportunity to respond was not
properly before the court).
for this reason that this District's Civil Local Rules
require that “[t]he opposition [to any motion] must
contain . . . copies of all documentary evidence
upon which the party in opposition relies.” S.D. Cal.
CivLR 7.1(f)(3)(b) (emphasis added). Where the producing
party has designated materials “Confidential, ”
the usual practice is for the receiving party to seek leave
of the court to file under seal any documents she wishes to
use in a court proceeding. See S.D. Cal. CivLR Model
Protective Order ¶ 12; see also How to E-file a
Civil Motion to File Documents Under Seal, Southern District
of California Electronic Case Filing CM/ECF User's Manual
Including How to File a New Civil Case and How to File Civil
Sealed Documents, 94-102 (rev. Apr. 2013), available at
ng.pdf; United States District Court for the Southern
District of California, Electronic Case Filing Administrative
Policies and Procedures Manual, 14-16 (Aug. 1, 2019),
Court previously counseled Ms. Hammett that “ex
parte motions are disfavored, ” ECF No. 75 at 2
(quoting Ayestas v. Davis, 584 U.S., 138 S.Ct. 1080,
1091 (2018)), and warned her that ex parte relief is
merited only in “extremely limited”
circumstances, id. (quoting Maxson v. Mosaic
Sales Sols. U.S. Operating Co., LLC, No.
2:14-CV-02116-APG, 2015 WL 4661981, at *1 (D. Nev. July 29,
2015)), including where “the moving party is without
fault in creating the crisis that requires ex parte relief,
or that the crisis occurred as a result of excusable
neglect.” Id. (quoting Mission Power
Eng'g Co. v. Cont'l Cas. Co., 883 F.Supp. 488,
492 (CD. Cal. 1995)). Ms. Hammett is not without fault in
creating the present evidentiary crisis; nonetheless, because
she is proceeding pro se, the Court concludes that
her failure to file exhibits under seal was the result of
excusable neglect. That said, Ms. Hammett is now on notice
that all materials in support or opposition of a
given motion must be filed by the Court-ordered deadlines,
whether publicly or under seal. See King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants
must follow the same rules of procedure that govern other
litigants.”), overruled on other grounds by Lacey
v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012).
Court therefore GRANTS Ms. Hammett's
Ex Parte Motion. Accordingly, within three (3)
days of the electronic docketing of this Order, Ms.
Hammett SHALL FILE UNDER SEAL the six
proposed exhibits designated as “Confidential”
and SHALL FILE a separate motion for leave
to file those documents under seal. Within seven (7)
days of the electronic docketing of an Order on Ms.
Hammett's motion for leave to file the documents under
seal, Defendants Patrick G. McGarrigle and McGarrigle, Kenney
& Zampiello and Defendants Alan N. Goldberg, Ellis Roy
Stern and Stern & Goldberg each MAY FILE
a response, not to exceed ten (10) pages.