Wright v. Old Gringo, Inc.

Opinion

7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10 MARSHA WRIGHT, an individual, Case No.: 17-cv-1996-BAS-MSB 11 12 Plaintiff, ORDER DENYING PLAINTIFF’S EX PARTE MOTION TO STAY 13 v. PROCEEDINGS PENDING OUTCOME OF FOREIGN DISCOVERY 14 OLD GRINGO, INC., et al., [ECF No. 213] 15 Defendants. 16 17 On January 10, 2020, Plaintiff filed an ex parte motion to stay proceedings in this 18 action pending the completion of discovery in Mexico (“Motion” or “Mot.”). (ECF No. 19 213.) Defendants oppose the Motion. (ECF No. 214.) For the reasons stated below, the 20 Court DENIES Plaintiff’s Motion. 21 I. BACKGROUND 22 In September 2019, upon Plaintiff’s request, Magistrate Judge Michael S. Berg 23 allowed Plaintiff to conduct foreign discovery in Mexico, including taking four depositions 24 of OGS officials and others regarding the company’s finances and value and four sets of 25 requests for production. (See Joint Discovery Plan at 10–11, ECF No. 172; Second Am. 26 Scheduling Order at 5, ECF No. 179; Mot. at 3.) On November 19, 2019, the parties filed 27 a joint motion requesting that the court issue a letter of request to compel discovery 28 regarding OGS from the judicial authorities in Mexico. (Joint Mot., ECF No. 200.) Judge 1 Berg thereafter issued a letter of request to the judicial authorities in Mexico on December 2 2, 2019, pursuant to the Hague Convention, requesting assistance in obtaining this evidence. 3 (Letter of Req., ECF No. 202.) Plaintiff alleges that although the letter of request was 4 delivered to the appropriate authorities on December 19, 2019, she has yet to hear from the 5 Mexican authorities regarding the requested depositions or document productions. (Mot. at 6 2.) 7 The deadline to complete OGS discovery and to submit pretrial disclosures was 8 January 13, 2020. (Second Am. Scheduling Order at 7.) In light of these deadlines and the 9 nonresponsiveness of the Mexican authorities, Plaintiff made two simultaneous requests: 10 First, Plaintiff moved for an extension of the remaining pretrial and trial-related deadlines 11 to allow her to complete the foreign discovery before Judge Berg. (ECF No. 209.) Second, 12 Plaintiff filed before this Court the instant ex parte motion to stay proceedings in this action 13 pending the completion of discovery in Mexico (“Motion” or “Mot.”). (ECF No. 213.) 14 On January 24, 2020, Judge Berg denied Plaintiff’s request to modify the schedule 15 order to allow her to obtain the foreign discovery, citing to Plaintiff’s lack of diligence. 16 (Order, ECF No. 224.) 17 II. ANALYSIS 18 Ex parte relief is rarely justified. Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 19 F. Supp. 488, 490 (C.D. Cal. 1995); Horne v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 20 1205 (C.D. Cal. 2013) (“The ‘opportunities for legitimate ex parte applications are 21 extremely limited.’”) (quoting In re Intermagnetics America, Inc., 101 B.R. 191, 193 (C.D. 22 Cal. 1989)). Thus, to warrant ex parte relief, the moving party must show that it will suffer 23 irreparable harm if the motion is not heard on an expedited schedule and that it either did 24 not create the circumstances warranting ex parte relief or that the circumstances occurred as 25 a result of excusable neglect. Mission Power, 883 F. Supp. at 492. 26 The Court finds that Plaintiff has not met her burden for ex parte relief because 27 Plaintiff has failed to show that the circumstances underlying her Motion were not of her 28 own making or are the result of excusable neglect. First, despite stating her intention to seek 1|| a letter of request to the judicial authorities in Mexico in May 2019, Plaintiff waited unti 2||September 19, 2019 to initiate this lengthy process, and further chose not to pursu 3 || additional avenues of discovery concurrent with the letter of request. (Order at 9-10. 4|| Second, although Magistrate Judge Berg issued an order in September 2019 setting th 5|| January 13, 2020 deadline for foreign discovery and emphasizing that such discovery mus 6|| be completed by that date, Plaintiff nonetheless waited two months before filing the Joir Motion to request discovery from Mexican authorities. (Second Am. Scheduling Order ¢ 8 || 4-5; Joint Mot.; Order at 10.) Lastly, as Judge Berg indicated in his Order, Plaintiff faile to properly meet and confer with Defendants to facilitate a more efficient discovery proces: 10 |) (Order at 10-11.) 11 Plaintiff has not sufficiently shown that the circumstances giving rise to her ex part request to stay proceedings were not of her own making or the result of excusable neglect 13 |} Accordingly, Plaintiff's ex parte motion to stay proceedings is DENIED. 14 IT IS SO ORDERED. 15 , 16|| DATED: February 18, 2020 (yitlig (Bohtsrk 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28