Daigle v. City of Oceanside

• Court: District Court, S.D. California
• Decided: February 10, 2020
• Docket: 3:19-cv-01180
• Status: Unknown

Opinion

7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 GWEN DAIGLE, Case No. 19-cv-01180-BAS-WVG 11 Plaintiff, ORDER GRANTING PLAINTIFFS’ 12 EX PARTE APPLICATION TO FILE v. MOTION TO SUBSTITUTE 13 PLAINTIFFS AND TO FILE PROPOSED SECOND AMENDED 14 CITY OF OCEANSIDE, et al., COMPLAINT 15 Defendants. [ECF No. 23] 16 17 On February 3, 2020, Brandon Lee Daigle and Hunter Willow Munsterman, as 18 successors-in-interest to Plaintiff Gwen Daigle, moved ex parte seeking to file a Motion to 19 Substitute Plaintiffs and a proposed Second Amended Complaint (“SAC”) in this case. 20 (ECF No. 23.) The ex parte application is unopposed.1 21 To warrant ex parte relief, the moving party must show that it will suffer irreparable 22 harm if the motion is not heard on an expedited schedule and that it either did not create the 23 circumstances warranting ex parte relief or that the circumstances occurred as a result of 24 excusable neglect. Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 25 (C.D. Cal. 1995). 26

27 1 Ex parte applications that are not opposed within two Court days must be considered unopposed and may be granted on that ground. See the Hon. Cynthia Bashant’s Standing Order for Civil Cases § 6. Defendants 28 1 Here, both requirements are satisfied. First, Plaintiff’s counsel states that the 2 ||circumstances warranting this relief are the result of excusable neglect, as he “mistakenly 3 || believed” he had emailed a proposed SAC, substituting Gwen Daigle’s children and mothe 4 plaintiffs, to opposing counsel in mid-January, when he had in fact not done so. (Decl 5 |lof Jerry L. Steering (“Steering Decl.”) 23, ECF No. 23-1.) Upon discovering this 6 omission, Plaintiff’ □ counsel immediately emailed defense counsel and attempted to contact 7 ||them to conduct the pre-filing meet and confer seven days before the February 3, □□□□ 8 || deadline to file the Motion to Substitute, as required by this Court’s Civil Standing Order 9 (Steering Decl. 24-27.) The parties ultimately met and conferred on January 30, 2020 10 || dd. 9] 30-34.) Defense counsel objected to the filing of the Motion less than seven days 11 || after the pre-filing conference, necessitating the instant ex parte. (Id. F§ 35—36.)” 12 Second, the application sufficiently alleges irreparable harm because the Motion tc 13 Substitute must be filed with within 90 days of the filing of the Notice of Death. Fed. R 14 P. 25. The Notice of Death was filed November 5, 2020 (ECF No. 17); as such, the 15 || deadline to file the Motion to Substitute was February 3, 2020. Plaintiffs counsel requests 16 ||that the Court allow the filing of the Motion (ECF No. 19) or, alternatively, extend this 17 || deadline to allow for a timely filing of the Motion. (Steering Decl. ¥ 41.) 18 Accordingly, the Court GRANTS the ex parte application. For good cause shown 19 Court permits the filing of the Motion to Substitute/Motion to File SAC (ECF No. 19) 20 || Defendants may raise any timeliness objections in their Opposition to the Motion. 21 IT IS SO ORDERED. 22 , 23 || DATED: February 10, 2020 ( ill g_& Apphaarts 24 United States District Judge 25 26 27 ||? Plaintiff’s counsel also informed defense counsel that he would be filing the instant ex parte application as required by Civil Local Rule 83.3(g), and asked if counsel opposed the motion. (Steering Decl. § 36. 28 |) Counsel’s declaration does not indicate whether defense counsel responded to this inquiry. oO.