Free Ex Parte Application - District Court of California - California

Case 3:08-cv-03471-SI

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FOLEY & LARDNER LLP ONE MARITIME PLAZA, SIXTH FLOOR SAN FRANCISCO, CA 94111-3409 TELEPHONE: 415.434.4484 FACSIMILE: 415.434.4507 KIMBERLY K. DODD, CA BAR NO. 235109, [email protected] FOLEY & LARDNER LLP 111 HUNTINGTON AVENUE, 26TH FLOOR BOSTON, MA 02199-7626 TELEPHONE: 617.342.4000 FACSIMILE: 617.342.4001 STEPHEN D. RIDEN, (TO BE ADMITTED PRO HAC VICE), [email protected]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION GREGORY SHADE, Plaintiff, vs. Case No: 3:08-cv-03471-SI EX PARTE MOTION TO EXTEND TIME TO RESPOND TO THE COMPLAINT

DANIEL PATRICK GORMAN, individually Judge: Hon. Susan Illston and doing business as CHARLIE SEVEN FILMS, LLC, FRAMEBIRD MEDIA, CHIP R. Dept: Courtroom 10, 19th Floor BEASLEY, and ANDREW ELLIS, Defendants.

EX PARTE MOTION TO EXTEND TIME TO RESPOND TO COMPLAINT CASE NO. 3:08-cv-03471-SI
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Pursuant to Federal Rule of Civil Procedure 6(b) and Northern District of California Local Rules 6-3, 7-10 and 7-11, Defendant Andrew Ellis requests a 21-day enlargement of time, until September 8, 2008, to respond to Plaintiff's complaint. Under the current schedule, an answer or response is due on August 18, 2008. See F.R.C.P. 12(a)(1)(A)(i) (20 days from date of service, July 28, 2008, not including weekends). An extension of time to respond is necessary because Mr. Ellis recently obtained pro bono counsel who will require additional time to determine whether a Rule 12 motion is appropriate, and if so, to prepare the same. As of August 14, 2008, Plaintiff's counsel had not yet granted Defendant's repeated requests for an extension. Under Federal Rule of Civil Procedure 6(b), this Court may grant an extension of time ex parte. F.R.C.P. 6(b) ("with or without motion or notice"); see also, SCHWARZER ET AL, CAL. PRAC. GUIDE: FED. CIV. PRO. BEFORE TRIAL (The Rutter Group 2008) ("On a showing of `good cause,' the court may sign an ex parte order extending the time within which any act is required or allowed to be done..."). Good cause for an extension is present because counsel at Foley & Lardner LLP agreed to represent Mr. Ellis on a pro bono basis last week and is still completing its review of the complaint and conducting factual inquiry. Counsel's initial review indicates possible grounds for a motion under Federal Rule of Civil Procedure 12. The current August 18, 2008 due date would make it impracticable to complete such a motion. See attached Declaration of Stephen Riden ("Riden Decl.") at ¶ 2. Mr. Ellis' counsel promptly contacted Plaintiff's counsel on August 11, 2008 asking for an extension of time. In response, Plaintiff's counsel stated that he is "not authorized to respond to [the] request." Riden Decl. at ¶ 3. On August 13, 2008, Mr. Ellis' counsel spoke to Plaintiff's counsel by phone to determine whether an extension could be granted, but Plaintiff's counsel stated that he was not authorized to grant any extensions and that he could not reach his client, who was out of the country, to discuss this matter. Riden Decl. at ¶ 4. Plaintiff's counsel explained that he would try again to reach his client and then phone Mr. Ellis' counsel to provide a definitive response to Mr. Ellis' request for an extension. Riden Decl. at ¶ 5.
EX PARTE MOTION TO EXTEND TIME TO RESPOND TO COMPLAINT CASE NO. 3:08-cv-03471-SI

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As of 12:00 p.m. PDT on August 14, 2008, Plaintiff's counsel had not yet replied regarding Defendant's requested extension. Riden Decl. at ¶ 6. In none of these exchanges did Plaintiff's counsel cite any prejudice from an extension. Riden Decl. at ¶ 7. There have been no previous time modifications in this action and the requested time modification would have no other effect on the schedule of this case. Riden Decl. at ¶ 8. The requested 21-day enlargement of time would permit counsel to fully analyze the allegations of the complaint and prepare a motion to dismiss or an answer, as appropriate. In the absence of an extension, this ability would be prejudiced. As a Rule 12 motion could allow the Court to narrow the issues in dispute, and Plaintiff's counsel has cited no prejudice from an extension, the Court should grant the requested enlargement of time to respond until September 8, 2008. On August 14, 2008, this Court allowed a similar motion filed by Mr. Ellis' co-defendants. See Order by Judge Illston granting [17] Ex Parte Application (Document No. 19). FOLEY & LARDNER LLP Dated: August 14, 2008 By: /S/ KIMBERLY K. DODD ATTORNEYS FOR DEFENDANT ANDREW ELLIS

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FOLEY & LARDNER LLP ONE MARITIME PLAZA, SIXTH FLOOR SAN FRANCISCO, CA 94111-3409 TELEPHONE: 415.434.4484 FACSIMILE: 415.434.4507 KIMBERLY K. DODD, CA BAR NO. 235109, [email protected] FOLEY & LARDNER LLP 111 HUNTINGTON AVENUE, 26TH FLOOR BOSTON, MA 02199-7626 TELEPHONE: 617.342.4000 FACSIMILE: 617.342.4001 STEPHEN D. RIDEN, (TO BE ADMITTED PRO HAC VICE), [email protected]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION GREGORY SHADE, Plaintiff, vs. Case No: 3:08-cv-03471-SI DECLARATION OF STEPHEN RIDEN IN SUPPORT OF EX PARTE MOTION TO EXTEND TIME TO RESPOND TO THE COMPLAINT

DANIEL PATRICK GORMAN, individually and doing business as CHARLIE SEVEN FILMS, LLC, FRAMEBIRD MEDIA, CHIP R. Judge: Hon. Susan Illston Dept: Courtroom 10, 19th Floor BEASLEY, and ANDREW ELLIS, Defendants.

DECLARATION OF STEPHEN RIDEN RE EX PARTE MOTION TO EXTEND TIME TO RESPOND TO COMPLAINT CASE NO. 3:08-cv-03471-SI
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I, Stephen Riden, declare as follows: 1. I am an attorney duly admitted to practice in the Commonwealth of Massachusetts

and am an attorney at the law firm of Foley & Lardner LLP, counsel for Defendant Andrew Ellis in the above-captioned matter. I have personal knowledge of the matters stated herein, and if called to testify, could and would testify competently thereto. 2. Counsel at Foley & Lardner LLP agreed to represent Mr. Ellis on a pro bono basis

last week and is still completing its review of the Complaint and conducting factual inquiry. Counsel's initial review indicates possible grounds for a motion under Rule 12 of the Federal Rules of Civil Procedure. The current August 18, 2008, due date would make it impracticable to complete such a motion. 3. Mr. Ellis' counsel contacted Plaintiff's counsel on August 11, 2008 asking for an

extension of time. In response, Plaintiff's counsel stated that he is "not authorized to respond to [the] request." A true and correct copy of the email exchange between Plaintiff's counsel and Mr. Ellis' counsel is attached hereto as Exhibit A. 4. On August 13, 2008, Mr. Ellis' counsel spoke to Plaintiff's counsel by phone to

determine whether an extension could be granted, but Plaintiff's counsel reiterated that he was not authorized to grant any extensions and stated that he could not reach his client, who was out of the country, to discuss this matter. 5. Plaintiff's counsel explained that he would try again to reach his client and then

phone Mr. Ellis' counsel to provide a definitive response to Mr. Ellis' request for an extension. 6. As of 11:00 a.m. PDT on August 14, 2008, Plaintiff's counsel had not yet replied

regarding Mr. Ellis' requested extension. 7. extension. 8. There have been no previous time modifications in this action and the requested In none of these exchanges did Plaintiff's counsel cite any prejudice from an

time modification would have no other effect on the schedule for this case. 9. I declare under penalty of perjury that the foregoing is true and correct. Executed

DECLARATION OF STEPHEN RIDEN RE EX PARTE MOTION TO EXTEND TIME TO RESPOND TO COMPLAINT CASE NO. 3:08-cv-03471-SI
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on August 14, 2008, in Boston, Massachusetts. /s/ Stephen Riden Stephen Riden

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DECLARATION OF STEPHEN RIDEN RE EX PARTE MOTION TO EXTEND TIME TO RESPOND TO COMPLAINT CASE NO. 3:08-cv-03471-SI

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Exhibit A

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Riden, Stephen D.
From: Sent: To: Riden, Stephen D. Wednesday, August 13, 2008 1:08 PM Steven L. Hammond

Subject: RE: Shade v. Gorman, et al.: Response to complaint Mr. Hammond, Please let me know if you are willing to grant the courtesy of an extension to Mr. Ellis, or whether motion practice will be necessary. Please be advised that I believe in extending courtesies to opposing counsel and routinely grant such extensions to attorneys who request them from me. Regards

Stephen D. Riden Foley & Lardner LLP www.foley.com

From: Steven L. Hammond [mailto:[email protected]] Sent: Tuesday, August 12, 2008 2:30 PM To: Riden, Stephen D. Subject: RE: Shade v. Gorman, et al.: Response to complaint

Stephen, I am not authorized to respond to your request other than to state that I cannot determine Mr. Shade's position at this time and on that basis cannot presently grant an extension. Regards, Steve Hammond
Steven L. Hammond Hammond Law One Ferry Building, Suite 350 San Francisco, CA 94111 Tel: 4159551915 Fax: 4159551976
CONFIDENTIALITY This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message.



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From: Riden, Stephen D. [mailto:[email protected]] Sent: Tuesday, August 12, 2008 11:08 AM To: [email protected] Subject: RE: Shade v. Gorman, et al.: Response to complaint Steven, Have you had a chance to consider my request below? Thanks Stephen D. Riden Foley & Lardner LLP www.foley.com

From: Riden, Stephen D. Sent: Monday, August 11, 2008 3:56 PM To: '[email protected]' Subject: RE: Shade v. Gorman, et al.: Response to complaint Steven, As we discussed, last week I reached out to the other defendants in this action and on Friday I spoke with their attorney. He is going to speak with his clients and get back to me with his views on your settlement terms. Since all of the parties are cooperating to determine whether there is a possibility of settlement at this stage, I respectfully request additional time to respond to the complaint. In this regard, I am requesting an extension to September 1, 2008, to answer or otherwise respond to the complaint on behalf of my client, Andrew Ellis. Will you agree to such an extension? I will touch base with you as soon as I speak with the attorney for the co-defendants. Thank you for your courtesy in this matter. Regards Stephen D. Riden Foley & Lardner LLP www.foley.com

From: Riden, Stephen D. Sent: Wednesday, August 06, 2008 5:06 PM To: [email protected] Subject: Shade v. Gorman, et al.: Contact Info. It was a pleasure to speak with you. My contact information is below. And my direct dial is

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617-342-4078. Regards

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Stephen D. Riden Foley & Lardner LLP 111 Huntington Avenue Boston, MA 02199 (617) 342-4000 www.foley.com

The preceding email message may be confidential or protected by the attorney-client privilege. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

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FOLEY & LARDNER LLP ONE MARITIME PLAZA, SIXTH FLOOR SAN FRANCISCO, CA 94111-3409 TELEPHONE: 415.434.4484 FACSIMILE: 415.434.4507 KIMBERLY K. DODD, CA BAR NO. 235109, [email protected] FOLEY & LARDNER LLP 111 HUNTINGTON AVENUE, 26TH FLOOR BOSTON, MA 02199-7626 TELEPHONE: 617.342.4000 FACSIMILE: 617.342.4001 STEPHEN D. RIDEN, (TO BE ADMITTED PRO HAC VICE), [email protected]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION GREGORY SHADE, Plaintiff, vs. Case No: 3:08-cv-03471-SI [PROPOSED] ORDER GRANTING EXTENSION OF TIME TO RESPOND TO THE COMPLAINT

DANIEL PATRICK GORMAN, individually Judge: Hon. Susan Illston and doing business as CHARLIE SEVEN Dept: Courtroom 10, 19th Floor FILMS, LLC, FRAMEBIRD MEDIA, CHIP R. BEASLEY, and ANDREW ELLIS, Defendants.

[PROPOSED] ORDER GRANTING EXTENSION OF TIME TO RESPOND TO THE COMPLAINT CASE NO. 3:08-cv-03471-SI
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Having reviewed Defendant Andrew Ellis' submissions and GOOD CAUSE appearing therefor, IT IS HEREBY ORDERED THAT: Defendant Andrew Ellis' time to respond to the Complaint is enlarged until September 8, 2008.

Dated: ___________________, 2008

________________________________ Honorable Susan Illston United States District Judge

[PROPOSED] ORDER GRANTING EXTENSION OF TIME TO RESPOND TO THE COMPLAINT CASE NO. 3:08-cv-03471-SI
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