Raiser v. The United States District Court for the Southern District of California
- Proceeding
- district
- Area
- civil
- Panel
- Todd W. Robinson (author)
Analysis
The court considered Plaintiff Aaron Raiser's ex parte application for a temporary restraining order or preliminary injunction. The court denied the application without prejudice because the plaintiff failed to show why regular noticed motion procedures should be bypassed.
| What the court decided | The model |
|---|---|
Plaintiff's ex parte application for a temporary restraining order or preliminary injunction is denied without prejudice.“As a result, the Court will not address the substance of the motion[] and [it is] hereby DENIED [WITHOUT PREJUDICE].” | agree with court The court correctly applied the standard for ex parte relief, which requires a showing of irreparable prejudice if regular procedures are followed and that the moving party is without fault in creating the crisis. The order recites that the plaintiff filed the action in August 2020 but did not seek injunctive relief until September 2021, and made no effort to explain why regular procedures should be bypassed. This failure to meet the procedural requirements for ex parte relief justifies the denial without prejudice. |
The order itself: sound — The order correctly identifies the high bar for ex parte relief and applies it to the specific facts recited (the delay of over a year without explanation). It cites appropriate authorities for the proposition that ex parte motions are disfavored and that pro se status does not excuse procedural non-compliance. The reasoning is direct and answers the motion based on the failure to meet the procedural threshold.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON RAISER, Case No.: 20-CV-1490 TWR (AGS)
12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S EX PARTE APPLICATION FOR 14 THE UNITED STATES DISTRICT TEMPORARY RESTRAINING COURT FOR THE SOUTHERN 15 ORDER OR PRELIMINARY DISTRICT OF CALIFORNIA, et al., INJUNCTION 16 Defendants. 17 (ECF No. 52)
18 19 Presently before the Court is Plaintiff Aaron Riser’s “Emergency” Ex Parte 20 Application for Order (“Ex Parte App.,” ECF No. 52). “In our adversary system, ex parte 21 motions are disfavored.” Ayestas v. Davis, 584 U.S. __, 138 S. Ct. 1080, 1091 (2018); 22 accord United States v. Thompson, 827 F.2d 1254, 1257 (9th Cir. 1987)). Consequently, 23 “opportunities for legitimate ex parte applications are extremely limited.” Maxson v. 24 Mosaic Sales Sols. U.S. Operating Co., LLC, No. 2:14-CV-02116-APG, 2015 WL 25 4661981, at *1 (D. Nev. July 29, 2015) (quoting In re Intermagnetics Am., Inc., 101 B.R. 26 191, 193 (C.D. Cal. 1989)). A proper ex parte motion must “address . . . why the regular 27 noticed motion procedures must be bypassed,” i.e., “it must show why the moving party 28 should be allowed to go to the head of the line in front of all other litigants and receive 1 special treatment.” Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 2 (C.D. Cal. 1995). This requires the moving party to “show that the moving party’s cause 3 will be irreparably prejudiced if the underlying motion is heard according to regular noticed 4 motion procedures” and “that the moving party is without fault in creating the crisis that 5 requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. 6 Plaintiff meets none of these requirements in the instant Ex Parte Application. (See 7 generally ECF No. 52.) Aside from labelling some of the relief he seeks as 8 “EMERGENCY,” Plaintiff makes no effort to explain why his request must bypass the 9 regular procedures for noticed motions and be heard on an expedited basis. Rather, 10 Plaintiff initiated this action on August 3, 2020, (see ECF No. 1)—well over a year ago— 11 without seeking preliminary injunctive relief until today, September 27, 2021. (See ECF 12 No. 52.) Because Plaintiff fails to make the necessary showing, “[t]he pending motion[ is] 13 not properly brought in an ex parte manner.” See Maxson, 2015 WL 4661981, at *2. 14 “While the Court liberally construes the filings of pro se litigants, pro se litigants are not 15 relieved from following applicable rules of procedure, including the Local Rule requiring 16 a showing of compelling reasons for seeking relief on an ex parte basis.” Id. (citing Hebbe 17 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 18 1987)). “As a result, the Court will not address the substance of the motion[] and [it is] 19 hereby DENIED [WITHOUT PREJUDICE]. To the extent Plaintiff continues to seek 20 the relief requested, []he must file the motion[] in accordance with the rules of this Court 21 and provide notice of [it] to Defendant[s’] counsel.” See id. (emphasis in original). 22 Further, “the Court has outlined above the extremely limited circumstances in which 23 the filing of an ex parte request is proper. The Court expects Plaintiff to refrain in the 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 future from filing ex parte requests when the appropriate circumstances do not exist for 2 ||such a filing.” See id. 3 IT IS SO ORDERED. 4 Dated: September 27, 2021 Ssnemierz7 [59 1S bore Honorable Todd W. Robinson 7 United States District Court 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28