Ewing v. Freedom Forever, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON EWING, Case No.: 3:20-cv-0880-JLS-AHG 12 Plaintiff, ORDER PROHIBITING EX PARTE COMMUNICATION WITH THE 13 v. COURT AND ANY DIRECT 14 FREEDOM FOREVER, LLC, et al.. COMMUNICATION WITH CHAMBERS STAFF 15 Defendants.

21 22 23 24 25 26 27 28 1 This matter comes before the Court in light of an ex parte email Plaintiff sent to 2 chambers staff. Local Rule 83.9 prohibits correspondence or communication with the judge 3 outside the presence of opposing counsel. CivLR 83.9 Although Plaintiff did not send his 4 email to “the judge,” the impropriety of sending emails to the individual email addresses 5 of chambers staff is obvious, and both judges and their staff are beholden to codes of 6 conduct generally advising against ex parte communications with litigants. See, e.g., 7 Guenther v. Comm’r, 939 F.2d 758, 760 (9th Cir. 1991) (“Only in light of a ‘compelling 8 justification’ would ex parte communications be tolerated.”) (citation omitted); Aureflam 9 Corp. v. Pho Hoacali Express, Inc., No. 04CV2080 JAH (WMC), 2008 WL 11337853, at 10 *2 (S.D. Cal. Mar. 13, 2008) (applying Local Rule 83.9 to communications with court 11 staff); S.E.C. v. Schooler, No. 3:12-CV-2164-GPC-JMA, 2015 WL 1510949, at *2 (S.D. 12 Cal. Mar. 4, 2015) (noting that the ex parte communication prohibition extends to law 13 clerks, because judges communicate ex parte with their clerks); In re Intermagnetics Am., 14 Inc., 101 B.R. 191, 193 n.2 (C.D. Cal. 1989) (explaining that calls to law clerks in chambers 15 “are in effect ex parte communications with the judge and suffer the same vice as any ex 16 parte contact”). See also Code of Conduct for United States Judges Canon 3 § A(4) 17 (advising that judges should not “initiate, permit, or consider ex parte communications or 18 consider other communications concerning a pending or impending matter that are made 19 outside the presence of the parties or their lawyers[,]” with limited permissive exceptions, 20 none of which the Court elects to apply in this case); Kuyinu v. Walmart #01-1532, No. 05- 21 3462-PHX-ROS, 2006 WL 8440580, at *2 n.2 (D. Ariz. Sept. 7, 2006) (applying Canon 3 22 § A(4) to both judges and their staff); FEDERAL JUDICIAL CENTER, LAW CLERK HANDBOOK 23 § 5.2F (4th ed. 2020) (explaining that, like the judge, a law clerk is a “neutral party dealing 24 with advocates,” and the court has an obligation to avoid ex parte communications). 25 Additionally, no litigant should use a law clerk’s individual email address to 26 communicate with the Court regarding a case. Every judge in this Court has an email 27 address used by chambers staff for official communications with counsel and parties when 28 communication by email is appropriate. As Plaintiff knows, the email address used by the 1 || undersigned’s chambers is efile_goddard@casd.uscourts.gov. Any substantive requests or 2 || communications to the Court regarding the case should be made by formal motion or other 3 || filing. 4 Plaintiff is hereby put on notice that sending (a) any ex parte communication to the 5 ||Court’s official email address of efile_goddard@casd.uscourts.gov or (b) any direct 6 || correspondence whatsoever to chambers staff (ex parte or otherwise) will result in an order 7 show cause why sanctions should not be imposed. 8 IT IS SO ORDERED. 9 10 || Dated: May 19, 2021 i _ DpwioenH. Xian Honorable Allison H. Goddard 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28