Ramirez v. Zimmerman
- Proceeding
- district
- Area
- civil
- On appeal
- Jairo Cervantes Ramirez v. Shelly Zimmerman (2021-11-03) — affirmed — the Ninth Circuit's later ruling on this docket
- Panel
- Cynthia Ann Bashant (author)
Analysis
Plaintiffs filed an ex parte application to supplement the summary judgment record with bodyworn camera footage that they alleged was delayed by the City. The court denied the application, finding that Plaintiffs failed to demonstrate irreparable harm and that the delay was due to their own neglect in failing to pursue a prior discovery dispute.
| What the court decided | The model |
|---|---|
Plaintiffs' Ex Parte Application to Supplement Record for Summary Judgment Motion is denied.“Accordingly, Plaintiffs’ Ex Parte Application (ECF No. 157) is DENIED.” | agree with court The court correctly applied the high standard for ex parte relief, requiring a showing of irreparable harm and that the circumstances were not of the moving party's own making. The court found that the plaintiffs' declaration was conclusory regarding the specific harm to their summary judgment motion and noted that the plaintiffs had previously failed to timely pursue a discovery dispute regarding the same footage, which supports the finding of self-created circumstances or lack of excusable neglect. |
The order itself: sound — The order is sound. It correctly identifies the legal standard for ex parte relief and applies it to the specific facts presented. The court notes that the plaintiffs' declaration was conclusory and failed to link the missing evidence to specific merits of the summary judgment motion, as required by Mission Power. Furthermore, the court correctly identifies that the plaintiffs had a prior opportunity to resolve the discovery dispute and failed to do so, which undermines any claim of excusable neglect or that the delay was solely the fault of the opposing party.
Opinion
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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA
10 JAIRO CERVANTES, et al., CONSOLIDATED ACTIONS: 11 Plaintiffs, Case No. 17-cv-1230-BAS-AHG 12 v. Case No. 18-cv-1062-BAS-AHG 13 SAN DIEGO POLICE CHIEF ORDER DENYING PLAINTIFFS’ SHELLEY ZIMMERMAN, et al., EX PARTE APPLICATION TO 14 SUPPLEMENT RECORD FOR Defendants. SUMMARY JUDGMENT MOTION 15 [ECF No. 157]
16 BRYAN PEASE,
17 Plaintiff, 18 v. 19 SAN DIEGO COUNTY SHERIFF WILLIAM GORE, et al., 20 Defendants. 21 22 Before the Court is Plaintiffs’ Ex Parte Application to supplement the record on 23 summary judgment with the bodyworn camera (BWC) footage of three officers. (ECF No. 24 157.) The City opposes. (ECF No. 160.) 25 “The ‘opportunities for legitimate ex parte applications are extremely limited.’” 26 Horne v. Wells Fargo Bank, N.A., 969 F. Supp. 2d 1203, 1205 (C.D. Cal. 2013) (quoting 27 In re Intermagnetics America, Inc., 101 B.R. 191, 193 (C.D. Cal. 1989)). To warrant relief, 28 an ex parte application must demonstrate good cause to allow the moving party “to go to 1 the head of the line in front of all other litigants and receive special treatment.” Mission 2 Power Eng’r Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). To warrant 3 ex parte relief, the moving party must show that it will suffer irreparable harm if the motion 4 is not heard on an expedited schedule and that it either did not create the circumstances 5 warranting ex parte relief or that the circumstances occurred as a result of excusable 6 neglect. Id. at 492. 7 Plaintiffs have failed to make either showing in their Application. First, in a lengthy 8 declaration, Plaintiffs’ counsel recites a chronology of events beginning in May 2016, 9 during which Defendant City of San Diego (“City”) allegedly delayed production of almost 10 600 BWC videos until June 2019 and prevented him from downloading the videos himself. 11 (Decl. of Bryan Pease (“Pease Decl.”) ¶¶ 7–11, ECF No. 157-1.) However, Plaintiffs offer 12 no specific argument explaining the harm that will result from the omission of these videos, 13 including by reference to any specific merits of their Cross Motion for Summary Judgment. 14 See Mission Power, 883 F. Supp. at 492 (“A showing of irreparable prejudice usually 15 requires reference to the merits of the underlying motion.”). Mr. Pease only states that the 16 videos “would show without question that Defendants conspired to violate Plaintiffs’ civil 17 rights[.]” (Pease Decl. ¶ 10.) This conclusory statement is not sufficient to satisfy 18 Plaintiffs’ burden for ex parte relief. 19 Second, this appears to be a rehashing of a discovery dispute that was raised before 20 the Court in August 2018. At that time, the parties jointly requested an extension of time 21 to file a discovery dispute regarding the release of BWC footage of the underlying 22 incidents. (ECF No. 48.) Noting noncompliance with chambers’ rules, Magistrate Judge 23 Stormes allowed Plaintiffs to supplement the joint motion to demonstrate the timeliness of 24 the request for the extension. (ECF No. 49.) After two weeks during which Plaintiffs 25 failed to file a supplemental response, Magistrate Judge Stormes denied the joint motion. 26 (ECF No. 50.) Thus, it appears that Plaintiffs had the opportunity to address this dispute 27 over a year before their deadline to file their Cross Motion for Summary Judgment, and yet 28 1 || failed to do so. Thus, Plaintiffs have not shown that the circumstances allegedly warranting 2 Application were not of Plaintiffs’ own making or the result of excusable neglect. 3 Accordingly, Plaintiffs’ Ex Parte Application (ECF No. 157) is DENIED. 4 IT IS SO ORDERED. 5 f 6 ||DATED: April 7, 2020 (pillu.g (Bashan. 6 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28