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District Court Denies Ex Parte Motion to Compel Third Party to Produce Documents Where Plaintiff Waited too Long to File Motion

The plaintiff Alexsam, Inc. (“Alexsam”) filed an ex parte application to compel compliance with a subpoena to produce documents against a third party to the action, MasterCard. Alexsam had first served a Rule 45 subpoena on MasterCard several months earlier but had not received the documents it requested. Alexsam contended that it was being “stonewalled by delays in responding [by MasterCard] and then a last-minute demand that is unreasonable” after the close of fact discovery. As a result, Alexsam sought ex parte relief, arguing that it has acted diligently, but that MasterCard, while at first appearing cooperative, then refused to comply.

The district court began its analysis of the ex parte application by noting that ex parte applications are solely for extraordinary relief and should be used with discretion. See Local Rule 37-3 (to be heard on an ex parte basis, the moving party must show “irreparable injury or prejudice not attributable to the lack of diligence of the moving party”).

The district court then found that Alexsam not shown why it “should be allowed to go to the head of the line in front of all other litigants and receive special treatment.” See Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). The district court specifically concluded that Alexsam had pointed “to no reason why it could not have brought a motion to compel compliance at an earlier time and by a regularly noticed motion. That it decided to wait months before seeking compliance does not provide grounds for proceeding in an ex parte manner.” The district court also concluded that Alexsam “waited too long in the discovery period to attempt to compel production pursuant to the subpoena, and it has not shown good cause for an expedited hearing to remedy this delay, a delay that, due to its own lack of diligence, was of its own making.”

As a second reason to deny the application, the district court noted that “discovery cut-off in this action (even as extended based on a stipulation between the parties) expired on March 1, 2017. The District Judge’s Law and Motion Schedule, available on the Court’s website, clearly explains that ‘by the date of the discovery cutoff, all discovery motions to compel will be on file and have been argued (but not necessarily decided). The only discovery that may be conducted after the discovery cutoff date without leave of Court is discovery ordered by the Magistrate Judge for which a timely-filed motion was pending and argued before the discovery cutoff date.'”

Because Alexsam’s application was filed nearly four weeks after the discovery cutoff, it was untimely, even if ex parte relief were appropriate.

Accordingly, the district court denied the ex parte motion to compel.

Alexsam, Inc. v. Green Dot Corp., Case No. CV 15-5742-CAS (PLAx) (C.D. Cal. Mar. 28, 2017)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or