Free Response in Opposition to Motion - District Court of California - California

Case 3:08-cv-00491-JAH-POR

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JOHN J. WALLER, JR. (State Bar No. 094449) JAY STEIN (State Bar No. 141042) Members of FINESTONE & RICHTER, A Professional Corporation 11601 Wilshire Boulevard, Suite 1900 Los Angeles, California 90025 Telephone: (310) 575-0800 Facsimile: (310) 575-0170 E-Mail: [email protected] [email protected] Attorneys for Defendants Stups, Inc. and Stuart Berk

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) Case No.: 3:08-CV-00491-JAH- POR ) ) Plaintiff, ) ) vs. ) DEFENDANTS' MEMORANDUM OF POINTS ) AND AUTHORITIES IN OPPOSITION TO STUPS, INC. and STUART BERK, ) PLAINTIFF'S EX PARTE APPLICATION ) TO PERMIT MANUAL FILING OF ) EXHIBIT THAT CANNOT BE CONVERTED Defendants. ) INTO ELECTRONIC FORM ) ) ) ) ) April 1, 2008 ) Date: Time: 2:30 p.m. ) Judge: Hon. John A. Houston ) ) Place: Courtroom 11 MAIL BOXES ETC., INC.,

Defendants Stups, Inc. and Stuart Berk (collectively "Stups"), by and through their attorneys of record herein,

hereby submit the following points and authorities in opposition

1 _________________________________________________________ DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO PERMIT MANUAL FILING OF EXHIBIT

Case 3:08-cv-00491-JAH-POR

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to Plaintiff's Ex Parte Application To Permit Manual Filing of Exhibit That Cannot Be Converted Into Electronic Form:

I. PLAINTIFF'S EX PARTE APPLICATION IS UNTIMELY AND THE PRIVILEGE OF FILING THAT MOTION HAS BEEN WAIVED.

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Plaintiff filed its Motion for Temporary Restraining Order
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on March 17, 2008.
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However, Plaintiff failed to serve and file

at that time the instant Ex Parte Application to Permit Manual Filing of Exhibit.
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Plaintiff also failed to serve at the time

of filing its motion the actual evidence it now seeks to file manually. In fact, through the filing of this Opposition,

Plaintiff still has not served upon Defendants the evidence it seeks to file by way of the instant Ex Parte Application. On March 24, 2008, Defendants filed their opposition

papers, including the evidence in support of that opposition. Along with the Opposition, Defendants filed objections to

certain of Plaintiff's evidence. It is only after Plaintiff received Defendants' opposition and evidentiary objections that Plaintiff sought to supplement its moving papers with evidence not served or filed with the moving papers. Local Rule 7.1(f)(2)(a) requires the moving party to serve and file with its Notice of Motion "all documentary evidence which the movant intends to submit in support of the motion."

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Plaintiff failed to do so. Federal Rule of Civil Procedure 6
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(c)(2) also requires all affidavits supporting a motion to be served with the motion. "A movant's failure to file any papers required under the local rules may be deemed as a waiver of the motion, or other request for ruling by the court." (Local Rule 7.1(f)(2)(b)) Therefore, by failing to serve and file the proposed

evidence with the Notice of Motion and by failing to file the Ex
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Parte
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Application

with

the

Notice

of

Motion,

Plaintiff

has

waived both the right to proffer the new evidence and the right to seek leave of court to submit the evidence manually.
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II. GIVEN ITS UNTIMELINESS, PLAINTIFF'S EX PARTE APPLICATION IS ALSO NOT PROPERLY BEFORE THE COURT BECAUSE IT IS NOT SUPPORTED BY AN "EXCUSABLE NEGLECT" MOTION. Plaintiff was required by the Federal Rules of Civil

Procedure ("FRCP")and by local rule to serve and file with its Notice of Motion all of the evidence in support of its motion. It did not. After receiving Defendants' opposition brief and

evidence and Defendants' accompanying objection to Plaintiff's evidence, Plaintiff now seeks leave to file evidence in support of its original motion. FRCP 6(b)(1) provides that, for good cause, the Court may extend request a party's made time before in which time to to perform perform some act if or the "on

is

the

expires,

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motion made after the time has expired if the party failed to
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act because of excusable neglect."
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With respect to Plaintiff's instant Ex Parte Application, no excusable neglect is set forth as the basis for seeking the ex parte order, and, in no evidence there is has submitted been no in favor of such

ground,

fact,

excusable

neglect.

Plaintiff knew of the evidence it now seeks leave to file and did not even attempt to file it until after it received

Defendants' Opposition and evidentiary objections.
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III.
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PLAINTIFF'S ATTEMPT TO INTRODUCE NEW, BUT PRE-EXISTING EVIDENCE
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AFTER THE FILING OF ITS MOTION IS IMPROPER AND OBJECTIONABLE.
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An

important

procedural

distinction

is

presented

by

Plaintiff's instant motion to file manually additional evidence in support of its original motion, that distinction being that it is not newly discovered evidence, nor is it evidence that is only newly relevant because of matters raised first by

opposition brief.

Plaintiff knew of this evidence, referenced

it in an objectionable way in its moving papers and, now, only after tacitly acknowledging the merit of Defendants' evidentiary objection to the original reference to it seeks to file new evidence in support of its original motion. The filing of such evidence would be patently unfair.

Defendant formulated its response to the original motion on the basis that Plaintiff had filed the totality of its evidence when filing its motion.

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In various ways, courts have enforced preclusions against the
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untimely introduction of new evidence and the presentation of
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new arguments. "The district court need not consider arguments raised for the first time in a reply brief." Zamani, et al. v. Carnes, 491 F3d 990, 997 (9th Cir. 2007). Undoubtedly, such

preclusions ensure that a responding party is not "sandbagged" with different evidence after presenting its Opposition. Accordingly, fairness of the the Court is requested to preserve by the

responsive

briefing

schedule

denying

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Plaintiff's Ex Parte Motion for leave to permit manual filing of
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evidence.
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DATED:
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March 27, 2008

JOHN J. WALLER, JR. JAY STEIN FINESTONE & RICHTER

By___/s/John J. Waller, Jr. John J. Waller, Jr. Attorneys for Defendants Stups, Inc. and Stuart Berk

F:\CLIENTS\Stups-Berk\Pleadings\Ex Parte re Evidence Opposition\Opposition to Ex Parte to Manual file Evidence.doc

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