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Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 1 of 18 Page ID #:9
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Preservation Technologies,
`LLC,
`
`Plaintiff,
`
`Case No. CV 11-10701-JFW (JEMx)
`STANDING ORDER
`
`v.
`Facebook, Inc.,
`Defendants.
`__________________________
`READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND
`DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES.
`This action has been assigned to the calendar of Judge
`John F. Walter. Both the Court and counsel bear
`responsibility for the progress of litigation in Federal
`Court. To secure the just, speedy, and inexpensive
`determination of every action, all counsel are ordered to
`familiarize themselves with the Federal Rules of Civil
`Procedure, the Local Rules of the Central District of
`California, the General Orders of the Central District and
`the Judge’s Procedures and Schedules found on the website
`/ / /
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 2 of 18 Page ID #:10
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`1.
`
`for the United States District Court for the Central District
`of California (www.cacd.uscourts.gov).
`IT IS HEREBY ORDERED:
`Service of the Complaint:
`The plaintiff shall promptly serve the Complaint in
`accordance with Fed.R.Civ.P. 4 and shall file the proof(s) of
`service pursuant to the Local Rules. The plaintiff is hereby
`notified that failure to serve the Complaint within 120 days
`as required by Fed.R.Civ.P. 4(m) will result in the dismissal
`of the Complaint against the unserved defendant(s).
`2.
`Presence of Lead Counsel:
`Lead trial counsel shall attend all proceedings before
`this Court, including all scheduling, status, and settlement
`conferences. Only ONE attorney for a party may be designated
`as lead trial counsel unless otherwise permitted by the
`Court.
`3.
`Electronic Filing and Courtesy Copies:
`(a) Within ten days of a party’s initial appearance, lead
`trial counsel shall file a declaration entitled, “Declaration
`of Lead Trial Counsel re: Compliance with General Order
`Authorizing Electronic Filing” which shall notify the Court
`that counsel has registered as an “ECF User.” The
`declaration shall include counsel’s “E-Mail Address of
`Record” and shall state whether counsel has consented or
`elected not to consent to service and receipt of filed
`documents by electronic means.
`If counsel has not consented to the service and receipt
`of filed documents by electronic means, counsel shall
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`immediately file and serve via U.S. Postal Service on all
`parties who have appeared in the action a Notice advising all
`parties that counsel has elected not to consent to electronic
`service of documents in this action.
`(b) All documents that are required to be filed in an
`electronic format pursuant to the General Order Authorizing
`Electronic Filing shall be filed electronically no later than
`4:00 p.m. on the date due unless otherwise ordered by the
`Court. Any documents filed electronically after 4:00 p.m. on
`the date due will be considered late and may be stricken by
`the Court. Any documents which counsel attempt to file
`electronically which are improperly filed will not be
`accepted by the Court.
`(c) Counsel are ORDERED to deliver 2 copies of all
`documents filed electronically in this action to Chambers.
`For each document filed electronically, one copy shall be
`marked “CHAMBERS COPY” and the other copy shall be marked
`“COURTESY COPY.” The “CHAMBERS COPY” and “COURTESY COPY” are
`collectively referred to herein as “Courtesy Copies.” The
`Courtesy Copies of each electronically filed document must
`include on each page the running header created by the ECF
`system. In addition, on the first page of each Courtesy
`Copy, in the space between lines 1 - 7 to the right of the
`center, counsel shall include the date the document was
`e-filed and the document number. The Courtesy Copies shall
`be delivered to Chambers no later than 10:00 a.m. on the next
`business day after the document was electronically filed.
`All documents must be stapled or bound by a two prong
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`fastener, the electronic proof of service must be attached as
`the last page of each document, and all Exhibits to
`Declarations or Request for Judicial Notice must be tabbed.
`Counsel shall not staple the “COURTESY COPY” and “CHAMBERS
`COPY” together. The “COURTESY COPY” of all documents must be
`three-hole punched at the left margin with oversized 13/32"
`hole size, not the standard 9/32" hole size.
`(d) For any document that is not required to be filed
`electronically, counsel are ORDERED to deliver 1 conformed
`copy of the document, which shall be marked “COURTESY COPY,”
`to Chambers at the time of filing.
`(e) If the Court has granted an application to file
`documents under seal, the Court’s Courtesy Copies shall
`include a complete version of the documents including any
`sealed documents with an appropriate notation identifying
`that portion of the document that has been filed under seal.
`For example, if the Court orders Ex. A to a Declaration filed
`under seal, the Court’s Courtesy Copies of the Declaration
`should include Ex. A as an attachment with a notation that it
`has been filed under seal pursuant to the Court’s order.
`(f) In the unlikely event counsel finds it necessary to
`file a Notice of Errata: (1) the Notice of Errata shall
`specifically identify each error by page and line number and
`set forth the correction; and (2) a corrected version of the
`document in its entirety shall be attached to the Notice of
`Errata.
`(g) When a proposed order accompanies an electronic
`filing, a WordPerfect or Word copy of the proposed order,
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`along with a copy of the PDF electronically filed main
`document shall be e-mailed to JFW_Chambers@cacd.uscourts.gov.
`The subject line of the e-mail shall be in the following
`format: court’s divisional office, year, case type, case
`number, document control number assigned to the main document
`at the time of filing, judge’s initials and filer (party)
`name. Failure to comply with this requirement may result in
`the denial or striking of the request or the Court may
`withhold ruling on the request until the Court receives the
`required documents.
`4.
`Discovery:
`(a) All discovery matters have been referred to a United
`States Magistrate Judge. (The Magistrate Judge’s initials
`follow the Judge’s initials next to the case number.) All
`discovery documents must include the words “DISCOVERY MATTER”
`in the caption to ensure proper routing. Counsel are
`directed to contact the Magistrate Judge’s Courtroom Deputy
`to schedule matters for hearing.
`All decisions of the Magistrate Judge shall be final,
`subject to modification by the District Court only where it
`is shown that the Magistrate Judge’s Order is clearly
`erroneous or contrary to law. Any party may file and serve a
`motion for review and reconsideration before this Court. The
`moving party must file and serve the motion within fourteen
`calendar days of service of a written ruling or within
`fourteen calendar days of an oral ruling that the Magistrate
`Judge states will not be followed by a written ruling. The
`motion must specify which portions of the ruling are clearly
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`erroneous or contrary to law and support the contention with
`a memorandum of points and authorities. Counsel shall
`deliver a courtesy copy of the moving papers and responses to
`the Magistrate Judge.
`(b) Unless there is a likelihood that upon motion by a
`party the Court would order that any or all discovery is
`premature, counsel should begin to actively conduct discovery
`before the Fed.R.Civ.P. 26(f) conference because at the
`Scheduling Conference the Court will impose tight deadlines
`to complete discovery.
`5.
`Motions:
`(a) Time for Filing and Hearing Motions:
`Motions shall be filed in accordance with the Local
`Rules. This Court hears motions on Mondays commencing at
`1:30 p.m. Once a party has noticed a motion for hearing on a
`particular date, the hearing shall not be continued without
`leave of Court. No supplemental briefs shall be filed
`without leave of Court. Courtesy Copies shall be provided to
`the Court in accordance with paragraph 3 of this Order. No
`motion shall be noticed for hearing for more than 35 calendar
`days after service of the motion unless otherwise ordered by
`the Court. Documents not filed in compliance with the
`Court’s requirements will be stricken and will not be
`considered by the Court.
`Many motions to dismiss or to strike could be avoided if
`the parties confer in good faith (as they are required to do
`/ / /
`/ / /
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 7 of 18 Page ID #:15
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`under the Local Rules)1 especially for perceived defects in a
`Complaint, Answer, or Counterclaim which could be corrected
`by amendment. See, e.g., Eminence Capital, LLC v. Aspeon,
`Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)(where a motion to
`dismiss is granted, a district court should provide leave to
`amend unless it is clear that the Complaint could not be
`saved by any amendment). The Ninth Circuit requires that
`this policy favoring amendment be applied with “extreme
`liberality.” Morongo Band of Mission Indians v. Rose, 893
`F.2d 1074, 1079 (9th Cir. 1990).
`These principles require counsel for the plaintiff to
`carefully evaluate the defendant’s contentions as to the
`deficiencies in the Complaint, and in many instances, the
`moving party should agree to any amendment that would cure a
`curable defect.
`In the event the Court grants a motion to dismiss without
`prejudice to filing an amended complaint, the plaintiff shall
`file an amended complaint within the time period specified by
`the Court. A redlined version of the amended complaint shall
`be delivered to Chambers indicating all additions and
`deletions to the prior version of the complaint. If no time
`period is specified by the Court, the plaintiff shall file an
`amended complaint within fourteen calendar days of the date
`
`1 Among other things, Local Rule 7-3 requires counsel to
`engage in a pre-filing conference “to discuss thoroughly. . .
`the substance of the contemplated motion and any potential
`resolution.” Counsel should discuss the issues with
`sufficient detail so that if a motion is still necessary, the
`briefing may be directed to those substantive issues
`requiring resolution by the Court. Counsel should resolve
`minor procedural or other nonsubstantive matters during the
`conference.
`7
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 8 of 18 Page ID #:16
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`of the order granting the plaintiff leave to file an amended
`complaint. Failure to file an amended complaint within the
`time allotted will result in the dismissal of the action with
`prejudice.
`In addition to the requirements of the Local Rules, all
`motions to amend the pleadings shall: (1) state the effect of
`the amendment; (2) be serially numbered to differentiate the
`amendment from previous amendments; and (3) state the page,
`line number(s), and wording of any proposed change or
`addition of material.
`The parties shall deliver to Chambers a redlined version
`of the proposed amended pleading indicating all additions
`and/or deletions of material.
`(b) Length and Format of Motion Papers:
`Memoranda of Points and Authorities in support of or in
`opposition to motions shall not exceed 25 pages. Replies
`shall not exceed 12 pages. Only in rare instances and for
`good cause shown will the Court grant an application to
`extend these page limitations. Courtesy Copies of all
`evidence in support of or in opposition to a motion,
`including declarations and exhibits to declarations, shall be
`separated by a tab divider on the bottom of the page. If
`evidence in support of or in opposition to a motion exceeds
`twenty pages, the Courtesy Copies of the evidence must be
`placed in separately bound volumes and include a Table of
`Contents. If such evidence exceeds fifty pages, the Court’s
`Courtesy Copies of such evidence must be placed in a slant D-
`ring binder with each item of evidence separated by a tab
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 9 of 18 Page ID #:17
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`divider on the right side, and shall include a label on the
`spine of the binder identifying its contents. All documents
`contained in the binder must be three hole punched with the
`oversized 13/32” hole size, not the standard 9/32” hole size.
`Typeface shall comply with the Local Rules. NOTE: If
`Times Roman is used, the font size must be no less than 14;
`if Courier is used, the font size must be no less than 12.
`Footnotes shall be in the same typeface and font size as the
`text and shall be used sparingly.
`Documents which do not conform to the Local Rules and
`this Order will not be considered.
`(c) Citations to Case Law:
`Citations to case law must identify not only the case
`being cited, but the specific page referenced.
`(d) Citations to Other Sources:
`Statutory references should identify, with specificity,
`which sections and subsections are being referenced (e.g.,
`Jurisdiction over this claim for relief may appropriately be
`found in 47 U.S.C. § 33, which grants the district courts
`jurisdiction over all offenses of the Submarine Cable Act,
`whether the infraction occurred within the territorial waters
`of the United States or on board a vessel of the United
`States outside said waters). Statutory references which do
`not specifically indicate the appropriate section and
`subsection (e.g., Plaintiffs allege conduct in violation of
`the Federal Electronic Communication Privacy Act, 18 U.S.C. §
`2511, et seq.) are to be avoided. Citations to treatises,
`/ / /
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 10 of 18 Page ID #:18
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`manuals, and other materials should similarly include the
`volume and the section referenced.
`(e) Proposed Orders:
`Each party filing or opposing a motion or seeking the
`determination of any matter shall prepare and submit to the
`Court a separate Proposed Order in accordance with the
`General Order Authorizing Electronic Filing. The Proposed
`Order shall set forth the relief or action sought and a brief
`statement of the rationale for the decision with appropriate
`citations.
`Caveat: Failure to timely respond to any motion shall be
`deemed by the Court as consent to the granting of the motion.
`See Local Rules.
`6.
`Ex Parte Applications:
`Ex parte applications are solely for extraordinary
`relief. See Mission Power Eng'g Co. v. Continental Cas. Co.,
`883 F. Supp. 488 (C.D. Cal. 1995). Applications that fail to
`conform with the Local Rules, including a statement of
`opposing counsel’s position, will not be considered. In
`addition to electronic service, the moving party shall
`immediately serve the opposing party by fax or hand service
`and shall notify the opposing party that any opposition must
`be filed not later than twenty-four hours after the filing of
`the ex parte application. If counsel does not intend to
`oppose the ex parte application, counsel must inform the
`Courtroom Deputy by e-mail or telephone. The Court considers
`ex parte applications on the papers and usually does not set
`the matters for hearing. Courtesy Copies of all moving,
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 11 of 18 Page ID #:19
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`opposition, or non-opposition papers shall be provided to the
`Court in accordance with paragraph 3 of this Order. The
`Courtroom Deputy will notify counsel of the Court’s ruling or
`a hearing date and time, if the Court determines a hearing is
`necessary.
`7.
`Applications or Stipulations to Extend the Time to File
`any Required Document or to Continue Any Date:
`No applications or stipulations extending the time to
`file any required document or to continue any date are
`effective until and unless the Court approves them.
`Applications and/or stipulations to extend the time to file
`any required document or to continue any hearing, Pre-Trial
`date, or the Trial date, must set forth the following:
`(a) the existing due date or hearing date, as well as
`all dates set by the Court in the Scheduling and Case
`Management Order, including the discovery cut-off date, the
`Pre-Trial Conference date, and the Trial date;
`(b) the new dates proposed by the parties;
`(c) specific, concrete reasons supporting good cause for
`granting the extension; and
`(d) whether there have been prior requests for extensions
`by any party, and whether those requests were granted or
`denied by the Court.
`All applications and stipulations must be accompanied by
`a separate and independent proposed order which must be
`submitted to the Court in accordance with the General Order
`Authorizing Electronic Filing. Failure to submit a separate
`/ / /
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 12 of 18 Page ID #:20
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`proposed order may result in the denial of the application or
`stipulation or the Court may withhold ruling on the
`application or stipulation until the Court receives a
`separate proposed order.
`8.
`Temporary Restraining Orders and Injunctions:
`(a) Documentation Required:
`Parties seeking emergency or provisional relief shall
`comply with Fed.R.Civ.P.65 and the Local Rules. An ex parte
`application for a temporary restraining order must be
`accompanied by: (1) a copy of the complaint; (2) a separate
`memorandum of points and authorities in support of the
`application; (3) the proposed temporary restraining order and
`a proposed order to show cause why a preliminary injunction
`should not issue; and (4) such other documents in support of
`the application which the party wishes the Court to consider.
`(b) Notice to Opposition of Ex Parte Application:
`Unless relieved by order of the Court for good cause
`shown, on or before the day counsel files an ex parte
`application for a temporary restraining order, counsel must
`personally serve notice and all documents in support of the
`application and a copy of the Court’s Standing Order on
`opposing counsel or party. Counsel shall also notify the
`opposing party that any opposition must be filed no later
`than twenty-four hours after the service of the ex parte
`application. If counsel does not intend to oppose the ex
`parte application, counsel must promptly inform the Courtroom
`Deputy by e-mail or telephone. The Court considers ex parte
`applications on the papers and usually does not set the
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`matter for hearing. Courtesy Copies of all moving,
`opposition, or non-opposition papers shall be provided to the
`Court in accordance with paragraph 3 of this Order. The
`Courtroom Deputy will notify counsel of the Court’s ruling or
`a hearing date and time, if the Court determines a hearing is
`necessary. Counsel shall immediately file a Proof of Service.
`9.
`Proposed Protective Orders and Filings Under Seal:
`Protective orders pertaining to discovery must be
`submitted to the assigned Magistrate Judge. Proposed
`protective orders should not purport to allow, without
`further order of Court, the filing under seal of pleadings or
`documents filed in connection with a hearing or trial before
`the Court. The existence of a protective order does not
`alone justify the filing of pleadings or other documents
`under seal, in whole or in part.
`An application to file documents under seal must meet the
`requirements of the Local Rules and shall be limited to three
`documents by a party, unless otherwise ordered by the Court.
`The application to file documents under seal should not be
`filed under seal. There is a strong presumption of the
`public’s right of access to judicial proceedings and records
`in civil cases. In order to overcome the presumption in
`favor of access, the movant must demonstrate compelling
`reasons (as opposed to good cause) for the sealing if the
`sealing is requested in connection with a dispositive motion
`or trial, and the relief sought shall be narrowly tailored to
`serve the specific interest sought to be protected. Pintos
`/ / /
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`v. Pacific Creditors Ass'n, 565 F.3d 1106 (9th Cir. 2009),
`Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th
`Cir. 2006), Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
`1122, 1135 (9th Cir. 2003).
`For each document or other type of information sought to
`be filed under seal, the party seeking protection must
`articulate compelling reasons supported by specific facts or
`legal justification that the document or type of information
`should be protected. The facts supporting the application to
`file documents under seal must be provided by a declaration.
`Documents that are not confidential or privileged in their
`entirety will not be filed under seal if the confidential
`portions can be redacted and filed separately. The
`application to file documents under seal should include an
`explanation of why redaction is not feasible.
`If a party wishes to file a document that has been
`designated confidential by another party, the submitting
`party must give any designating party five calendar days
`notice of intent to file. If the designating party objects,
`it should notify the submitting party and file an application
`to file documents under seal within two court days.
`If the parties anticipate requesting the Court to file
`more than three documents under seal in connection with any
`motion, they shall identify all such documents that will be
`required to support and oppose the motion during the Local
`Rule 7-3 conference. The parties shall then meet and confer
`in order to determine if the documents satisfy the
`“compelling need” standard for “sealing” each document.
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 15 of 18 Page ID #:23
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`Thereafter, the parties shall file a joint application and
`lodge a proposed order to file under seal all such documents
`with the required showing as to each document. The joint
`application shall be filed promptly so that the Court may
`rule on the application before the filing date for the
`motion. The parties shall not file any pleadings containing
`documents they have requested the Court to file under seal
`until the Court acts on the application to file under seal.
`If an application to file documents under seal is denied
`in part or in full, the lodged documents will not be filed.
`The Courtroom Deputy will notify the submitting party, and
`hold the lodged documents for three court days to allow the
`submitting party to retrieve the documents. If the documents
`are not retrieved, the Courtroom Deputy will dispose of the
`documents.
`A redacted version for public viewing, omitting only such
`portions as the Court has ordered filed under seal shall be
`promptly filed by the parties after the Court’s Order sealing
`the documents. Should counsel fail to file a redacted
`version of the documents, the Court will strike any motion
`that relies on or relates to the document and/or file the
`document in the public record.
`If the Court grants an application to file documents
`under seal, the Court’s Courtesy Copies shall include a
`complete version of the documents with an appropriate
`notation identifying the document or the portion of the
`document that has been filed under seal.
`/ / /
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`10. Cases Removed From State Court:
`All documents filed in state court, including documents
`appended to the Complaint, Answer(s), and Motion(s), must be
`re-filed in this Court as a supplement to the Notice of
`Removal. The supplement must be in a separately bound volume
`and shall include a Table of Contents. See 28 U.S.C. §
`1447(a),(b). If the defendant has not yet answered or moved,
`the Answer or responsive pleading filed in this Court must
`comply with the Federal Rules of Civil Procedure and the
`Local Rules of the Central District. If before the case was
`removed a motion was pending in state court, it must be re-
`noticed in accordance with the Local Rules.
`11. Status of Fictitiously Named Defendants:
`This Court adheres to the following procedures when a
`matter is removed to this Court on diversity grounds with
`fictitiously named defendants referred to in the Complaint:
`(See 28 U.S.C. §§ 1441(a) and 1447.)
`(a) Plaintiff shall ascertain the identity of and serve
`any fictitiously named defendants within 120 days of the date
`that the Complaint was filed in State Court.
`(b) If plaintiff believes (by reason of the necessity for
`discovery or otherwise) that fictitiously named defendants
`cannot be fully identified within the 120-day period, an ex
`parte application requesting permission to extend the period
`to effectuate service may be filed with the Court. Such
`application shall state the reasons therefore, and may be
`granted upon a showing of good cause. The ex parte
`application shall be served upon all appearing parties, and
`
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 17 of 18 Page ID #:25
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`shall state that appearing parties may respond within seven
`calendar days of the filing of the ex parte application.
`(c) If plaintiff desires to substitute a named defendant
`for one of the fictitiously named defendants, plaintiff shall
`first seek the consent of counsel for all defendants (and
`counsel for the fictitiously named party, if that party has
`separate counsel). If consent is withheld or denied,
`plaintiff may apply ex parte requesting such amendment, with
`notice to all appearing parties. Each party shall have seven
`calendar days to respond. The ex parte application and any
`response should comment not only on the substitution of the
`named party for a fictitiously named defendant, but on the
`question of whether the matter should thereafter be remanded
`to the Superior Court if diversity of citizenship is
`destroyed by the addition of the new substituted party. See
`28 U.S.C. § 1447(c),(d).
`12. Bankruptcy Appeals:
`Counsel shall comply with the NOTICE REGARDING APPEAL
`FROM BANKRUPTCY COURT issued at the time the appeal is filed
`in the District Court. The matter is considered submitted
`upon the filing of the final brief. No oral argument is held
`unless ordered by the Court.
`13. Communications with Chambers:
`Counsel shall not attempt to contact the Court or its
`Chambers staff by telephone or by any other ex parte means,
`although counsel may contact the Courtroom Deputy, at (213)
`894-5396 or shannon_reilly@cacd.uscourts.gov, with
`/ / /
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`Case 2:11-cv-10701-JFW-JEM Document 8 Filed 01/03/12 Page 18 of 18 Page ID #:26
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`appropriate inquiries. To facilitate communication with the
`Courtroom Deputy, counsel should list their facsimile
`transmission numbers and e-mail address along with their
`telephone numbers on all papers.
`14. Notice of This Order:
`Counsel for plaintiff shall immediately serve this Order
`on all parties, including any new parties to the action. If
`this case came to the Court by noticed removal, defendant
`shall serve this Order on all other parties.
`Caveat: If counsel fail to cooperate in the preparation of
`the required Joint Rule 26 Report or fail to file the
`required Joint Rule 26 Report, or if counsel fail to appear
`at the Scheduling Conference, the Pre-Trial Conference and/or
`any other proceeding scheduled by the Court, and such failure
`is not otherwise satisfactorily explained to the Court: (a)
`the cause shall stand dismissed for failure to prosecute, if
`such failure occurs on the part of the plaintiff; (b) default
`judgment shall be entered if such failure occurs on the part
`of the defendant; or (c) the Court may take such action as it
`deems appropriate.
`
`
`DATED: January 3, 2012
`JOHN F. WALTER
` UNITED STATES DISTRICT JUDGE
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`(Rev. 3/1/11)
`
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