Atlantic Wave Holdings, LLC v. Cyberlux Corporation

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ATLANTIC WAVE HOLDINGS, LLC; Case No.: 3:24-cv-00196-RBM-VET et. al., 12 ORDER GRANTING DEFENDANTS’ 13 Plaintiffs, EX PARTE APPLICATION TO CONTINUE HEARING DATE ON 14 v. PLAINTIFFS’ SPECIAL MOTION 15 CYBERLUX CORPORATION; et. al., TO STRIKE DEFENDANTS’ Defendants. AMENDED COUNTERCLAIM 16

17 [Doc. 14]

19 20 On March 27, 2024, Defendants Cyberlux Corporation and Mark D. Schmidt 21 (collectively, “Defendants”) filed an Ex Parte Application to Continue the Hearing Date 22 on Plaintiffs’ Special Motion to Strike Defendants’ Amended Counterclaim 23 (“Application”). (Doc. 14.) On April 1, 2024, Plaintiffs Atlantic Wave Holdings, LLC; 24 Strikepoint Consulting, LLC; and Secure Community, LLC (collectively, “Plaintiffs”) filed 25 an Opposition to Defendants’ Application (“Opposition”). (Doc. 16.) 26 Pursuant to Civil Local Rule 7.1.d.1, the Court finds this matter suitable for 27 determination on the papers and without oral argument. For the reasons set forth below, 28 Defendants’ Application is GRANTED. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Defendants’ Application 3 In their Application, Defendants request an order continuing the hearing date on 4 Plaintiffs’ motion to strike as well as the deadlines to file any opposition or reply.1 (Doc. 5 14 at 2.) Defendants argue that the parties did not properly meet and confer regarding the 6 motion pursuant to this Court’s Civil Chambers Rules section III(A). (Id.) Specifically, 7 Defendants contend that “[a]lthough [Plaintiffs] contacted [Defendants] on March 14, 8 2024, a thorough meet and confer did not occur because the intent to file the Motion was 9 not previewed before that call and therefore the required attorneys for [Defendants] were 10 not available at the time, nor [was Defendants’] counsel prepared to discuss the merits of 11 such a [m]otion because they were not apprised of the purpose of the call ….” (Id.) 12 Defendants then contend that they sought to schedule a more thorough meet and confer on 13 March 20, 2024 but that Plaintiffs did not respond until March 25, 2024, four days after 14 they filed their motion to strike. (Id.) Defendants contend that the parties did not meet and 15 confer until March 26, 2024. (Id.) 16 Defendants now ask that the Court continue the hearing from April 22, 2024 to May 17 2, 2024, which would reflect the appropriate hearing date based upon the parties’ March 18 26, 2024 conference. (Id.) Defendants contend that their opposition would instead be due 19 on April 18, 2024 in accordance with the new hearing date. (Id.) 20 B. Plaintiffs’ Opposition 21 In their Opposition, Plaintiffs argue that Defendants’ Application does not show 22 good cause warranting an ex parte continuance because counsel met and conferred on 23 March 14, 2024, seven days before Plaintiff filed their motion to strike, in accordance with 24 this Court’s Chamber Rules.2 (Doc. 16 at 2.) Plaintiffs contend that, during this call, 25

26 27 1 Presently, the hearing is set for April 22, 2024, and Defendants’ opposition is due on April 8, 2024. (Doc. 14 at 2.) 28 2 1 Plaintiffs’ counsel explained the substance of the motion to strike and sought to determine 2 if the parties could reach a resolution that would eliminate the need to file a formal motion. 3 (Id. at 2, 4.) Plaintiffs then contend that Defendants’ counsel would not meet and confer 4 without his co-counsel, who was out of the country. (Id.) Nevertheless, Plaintiffs 5 explained that they would file their motion to strike on March 21, 2024 unless Defendants 6 reached out with potential solutions and the parties reached a solution before then. (Id. at 7 2, 5.) Plaintiffs then assert that they did not hear from Defendants until March 20, 2024, 8 when Defendant’s counsel indicated that they could not meet and confer until March 25, 9 2023. (Id.) Plaintiffs conclude that Defendants’ refusal to meet and confer does not 10 constitute good cause sufficient to continue the hearing on Plaintiffs’ motion to strike.3 (Id. 11 at 3.) 12 II. LEGAL STANDARD 13 Federal Rule of Civil Procedure 6(b)(1) states, “[w]hen an act may or must be done 14 within a specified time, the court may, for good cause, extend the time: … with or without 15 motion or notice if the court acts, or if a request is made, before the original time or its 16 extension expires ….” Fed. R. Civ. P. 6(b)(1)(A) (emphasis added); see e.g., Joe Hand 17 Promotions, Inc. v. Bragg, No. 13CV2725 DMS (JMA), 2014 WL 12570973, at *1 (S.D. 18 Cal. Feb. 18, 2014) (finding the plaintiff had not shown good cause pursuant to Rule 6(b) 19 to continue a motion hearing but granting the plaintiff a brief extension of time to file an 20 opposition as a “courtesy”); Brickan v. Fed. Sav. Bank, No. 8:22-cv-01053-JWH-KESx, 21

22 23 3 Plaintiffs also argue that Defendants’ Application does not meet the “good cause” standard for ex parte relief. (Id. at 5–6.) Specifically, Plaintiffs argue that Defendants will 24 not be irreparably prejudiced by the regular noticed motion procedures, that Defendants 25 are not without fault for the delay, that the delay is not the result of excusable neglect, and that the present situation does not fall within the “rare” cases that warrant ex parte relief. 26 (Id. at 6–7.) However, when a party seeks “a routine procedural order that cannot be 27 obtained through a regularly noticed motion (i.e., to file an overlong brief or shorten the time within which a motion may be brought)[,]” ex parte relief is justified. Horne v. Wells 28 1 2023 WL 4155410, at *3 (C.D. Cal. May 5, 2023) (“Courts can generally continue hearing 2 dates and extend briefing deadlines upon a showing of ‘good cause.’”) (citing Fed. R. Civ. 3 P. 6(b)). 4 “The matter of whether to grant a continuance is traditionally within the discretion 5 of the court.” Quintero Fam. Tr. v. OneWest Bank, F.S.B., No. 09-cv-1561-IEG (WVG), 6 2009 WL 4895305, at *3 (S.D. Cal. Dec. 11, 2009) (denying a plaintiff’s ex parte 7 application seeking a continuance of a motion to dismiss hearing) (citing Avery v. Alabama, 8 308 U.S. 444, 446 (1940)). “Whether a continuance is appropriate is determined based on 9 the particular circumstances present in the case.” Id. (citing Ungar v. Sarafite, 376 U.S. 10 575, 589–90 (1964)). 11 However, the Ninth Circuit has found that Rule 6(b) “is to be liberally construed to 12 effectuate the general purpose of seeing that cases are tried on the merits.” Ahanchian v. 13 Xenon Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010) (quotation omitted). 14 “Consequently, requests for extensions of time made before the applicable deadline has 15 passed should normally be granted in the absence of bad faith on the part of the party 16 seeking relief or prejudice to the adverse party.” Id. at 1259 (quotation omitted) (emphasis 17 added). “‘Good cause’ is a non-rigorous standard that has been construed broadly across 18 procedural and statutory contexts.” Id. at 1259–60 (finding the district court abused its 19 discretion when denying a request for a continuance when there was no reason to believe 20 the requesting party was acting in bad faith or was misrepresenting his reasons for asking 21 for the extension). 22 III. DISCUSSION 23 Here, Defendants timely filed the present Application seeking to continue the 24 hearing date and briefing deadlines for Plaintiffs’ motion to strike. In their Application, 25 Defendants contend that the parties were not able to meet and confer pursuant to this 26 Court’s Chamber Rules until March 26, 2024 because their co-counsel was out of the 27 country and, therefore, that Plaintiffs’ motion to strike was filed prematurely. However, 28 Defendants do not indicate why they could not have met and conferred without co-counsel 1 || prior to March 26, 2024. Defendants also do not indicate how they were prejudiced by 2 || Plaintiffs’ premature filing. The Court notes that Defendants received notice of Plaintiffs’ 3 ||motion to strike on March 14, 2024 and received the motion itself on March 21, 2024. 4 Thus, Defendants have had approximately two weeks to begin drafting an opposition to 5 || Plaintiffs’ motion to strike. 6 Nevertheless, as stated above, “requests for extensions of time made before the 7 || applicable deadline has passed should normally be granted in the absence of bad faith on 8 || the part of the party seeking relief or prejudice to the adverse party.” Ahanchian, 624 F.3d 9 1259. Here, there is nothing in the parties’ briefing suggesting that Defendants have 10 || acted in bad faith with respect to seeking this extension or that Plaintiffs will be prejudiced 11 |/by granting the parties additional time to file any opposition or reply. Accordingly, 12 || Defendants’ Application is GRANTED. 13 IV. CONCLUSION 14 Based on the foregoing, Defendants’ Application is GRANTED. The hearing on 15 || Plaintiffs’ motion to strike is continued from April 22, 2024 to May 2, 2024, and the 16 || briefing schedule will shift accordingly. However, the Courts cautions the parties that 17 || additional continuances will not be entertained absent extraordinary circumstances. 18 IT IS SO ORDERED. 19 ||DATE: April 4, 2024 20 21 eet emily, Moitaagps D_ 79 HON. RUTH BERMUDEZ'MONTENEGRO UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28