Hammett v. Sherman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAURA LYNN HAMMETT, Case No.: 19-CV-605 JLS (AHG)

12 Plaintiff, ORDER GRANTING PLAINTIFF 13 v. LEAVE TO SEEK TO FILE CONFIDENTIAL EXHIBITS UNDER 14 MARY E. SHERMAN, et al., SEAL AND GRANTING 15 Defendants. DEFENDANTS AN OPPORTUNITY TO RESPOND TO UNTIMELY 16 EVIDENCE 17 (ECF No. 98) 18

19 Presently before the Court is Plaintiff Laura Lynn Hammett’s Ex Parte Motion to 20 Submit Exhibits to be Seen in Camera to Chambers (“Ex Parte Mot.,” ECF No. 98), in 21 which she “respectfully ask[s] the Court to make an order granting leave to submit six (6) 22 exhibits Plaintiff intended to offer in camera at the hearing of October 24, 2019 that was 23 vacated on October 17, 2019.” Id. at 1–2. Ms. Hammett explains that “[t]he exhibits were 24 not offered with the other seventeen (17) exhibits lodged as ECF No. 78-3 because they 25 were marked ‘Confidential’ before being transmitted to Plaintiff by Patrick C. 26 McGarrigle.” Id. at 2. 27 Although dramatic presentations of new evidence at court hearings may seem 28 commonplace based on depictions in television and film, they are in actuality quite rare 1 because due process affords the other party the right to notice and an opportunity to 2 respond. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (“The 3 essential requirements of due process . . . are notice and an opportunity to respond. The 4 opportunity to present reasons, either in person or in writing, why proposed action should 5 not be taken is a fundamental due process requirement.”); see also, e.g., In re Speir, No. 6 BAP CC-10-1383, 2011 WL 5838570, at *5 (B.A.P. 9th Cir. Sept. 26, 2011) (concluding 7 that bankruptcy court abused its discretion by accepting late-filed evidence without 8 allowing the other party the opportunity to respond); Nguyen v. McHugh, 65 F. Supp. 3d 9 873, 887 (N.D. Cal. 2014) (striking the plaintiff’s late-filed errata to her opposition 10 “because it would prejudice Defendant if Defendant was forced to respond in reply to a 11 lengthy and untimely filing one day before the deadline for the reply”), aff’d, 722 F. App’x 12 688 (9th Cir. 2018); BSD, Inc. v. Equilon Enterprises, LLC, No. C 10-5223 SBA, 2013 WL 13 12306493, at *2 (N.D. Cal. Mar. 25, 2013) (concluding that late-filed evidence depriving 14 responding property of opportunity to respond was not properly before the court). 15 It is for this reason that this District’s Civil Local Rules require that “[t]he opposition 16 [to any motion] must contain . . . copies of all documentary evidence upon which the party 17 in opposition relies.” S.D. Cal. CivLR 7.1(f)(3)(b) (emphasis added). Where the producing 18 party has designated materials “Confidential,” the usual practice is for the receiving party 19 to seek leave of the court to file under seal any documents she wishes to use in a court 20 proceeding. See S.D. Cal. CivLR Model Protective Order ¶ 12; see also How to E-file a 21 Civil Motion to File Documents Under Seal, Southern District of California Electronic 22 Case Filing CM/ECF User’s Manual Including How to File a New Civil Case and How to 23 File Civil Sealed Documents, 94–102 (rev. Apr. 2013), available at https://www.casd. 24 uscourts.gov/_assets/pdf/cmecf/Users%20Manual%20for%20Electronic%20Case%20Fili 25 ng.pdf; United States District Court for the Southern District of California, Electronic Case 26 Filing Administrative Policies and Procedures Manual, 14–16 (Aug. 1, 2019), available at 27 https://www.casd.uscourts.gov/_assets/pdf/cmecf/Electronic%20Case%20Filing%20Proc 28 edures%20Manual%20080119.pdf. 1 The Court previously counseled Ms. Hammett that “ex parte motions are 2 || disfavored,” ECF No. 75 at 2 (quoting Ayestas v. Davis, 584 U.S.__, 138 S. Ct. 1080, 1091 3 ||(2018)), and warned her that ex parte relief is merited only in “extremely limited” 4 ||circumstances, id. (quoting Maxson v. Mosaic Sales Sols. U.S. Operating Co., LLC, No. 5 2:14-CV-02116-APG, 2015 WL 4661981, at *1 (D. Nev. July 29, 2015)), including where 6 || “the moving party is without fault in creating the crisis that requires ex parte relief, or that 7 || the crisis occurred as a result of excusable neglect.” /d. (quoting Mission Power Eng’g Co. 8 || v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995)). Ms. Hammett is not without 9 || fault in creating the present evidentiary crisis; nonetheless, because she is proceeding pro 10 || se, the Court concludes that her failure to file exhibits under seal was the result of excusable 11 |/neglect. That said, Ms. Hammett is now on notice that all materials in support or 12 ||opposition of a given motion must be filed by the Court-ordered deadlines, whether 13 publicly or under seal. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se 14 |/ litigants must follow the same rules of procedure that govern other litigants.”), overruled 15 || on other grounds by Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). 16 The Court therefore GRANTS Ms. Hammett’s Ex Parte Motion. Accordingly, 17 || within three (3) days of the electronic docketing of this Order, Ms. Hammett SHALL FILE 18 |} UNDER SEAL the six proposed exhibits designated as “Confidential” and SHALL FILE 19 ||a separate motion for leave to file those documents under seal. Within seven (7) days of 20 ||the electronic docketing of an Order on Ms. Hammett’s motion for leave to file the 21 ||documents under seal, Defendants Patrick G. McGarrigle and McGarrigle, Kenney & 22 ||Zampiello and Defendants Alan N. Goldberg, Ellis Roy Stern and Stern & Goldberg each 23 FILE a response, not to exceed ten (10) pages. 24 IT IS SO ORDERED. 25 26 Dated: October 21, 2019 , tt 7 ja Janis L. Sammartino 3g United States District Judge