Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 1 of 9 Page ID #:3
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CASE NO. SACV 11-1862-JVS(RNBx)
`INITIAL ORDER FOLLOWING
`FILING OF COMPLAINT ASSIGNED
`TO JUDGE SELNA
`
`PRESERVATION
`TECHNOLOGIES, LLC,
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`Plaintiff(s),
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`v.
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`NETFLIX, INC., ET AL,
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`Defendant(s).
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`______________________________ )
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`Important Notice: The Court posts tentative law and motions rulings
`to the internet. Please see Section P, below.
`
`COUNSEL FOR PLAINTIFF SHALL SERVE THIS ORDER ON ALL
`DEFENDANTS AND/OR THEIR COUNSEL ALONG WITH THE SUMMONS
`AND COMPLAINT, OR IF THAT IS NOT PRACTICABLE AS SOON AS
`POSSIBLE THEREAFTER. IF THIS CASE WAS ASSIGNED TO THIS
`COURT AFTER BEING REMOVED FROM STATE COURT, THE
`DEFENDANT WHO REMOVED THE CASE SHALL SERVE THIS ORDER
`ON ALL OTHER PARTIES.
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`Revised January 6, 2010
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CASE NO. SACV 11-1862-JVS(RNBx)
`INITIAL ORDER FOLLOWING
`FILING OF COMPLAINT ASSIGNED
`TO JUDGE SELNA
`
`PRESERVATION
`TECHNOLOGIES, LLC,
`
`Plaintiff(s),
`
` )
` )
` )
` )
` )
`v.
` )
` )
`NETFLIX, INC., ET AL,
` )
` )
`Defendant(s).
` )
` )
`______________________________ )
`
`Important Notice: The Court posts tentative law and motions rulings
`to the internet. Please see Section P, below.
`
`COUNSEL FOR PLAINTIFF SHALL SERVE THIS ORDER ON ALL
`DEFENDANTS AND/OR THEIR COUNSEL ALONG WITH THE SUMMONS
`AND COMPLAINT, OR IF THAT IS NOT PRACTICABLE AS SOON AS
`POSSIBLE THEREAFTER. IF THIS CASE WAS ASSIGNED TO THIS
`COURT AFTER BEING REMOVED FROM STATE COURT, THE
`DEFENDANT WHO REMOVED THE CASE SHALL SERVE THIS ORDER
`ON ALL OTHER PARTIES.
`
`Revised January 6, 2010
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 2 of 9 Page ID #:4
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`This case has been assigned to the calendar of Judge James V. Selna.
`The intent of this Order is to ensure that this case will proceed so as “to secure [a]
`just, speedy and inexpensive determination.” (Fed.R.Civ. P., Rule 1.)
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`A.
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`THE COURT’S ORDERS
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`Copies of Judge Selna’s orders that may have specific application to
`this case are available on the Central District of California website. See ¶ N.
`Those orders include the following:
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`(1) Order Setting Rule 26(f) Scheduling Conference
`(2) Order re Civil Jury Trials
`(3) Order re Civil Court Trials
`(4) Order re RICO Case Statement
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`B.
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`SERVICE OF PLEADINGS
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`Although Fed.R.Civ.P., Rule 4(m) does not require the summons and
`complaint to be served for as much as 120 days, the Court expects that the initial
`pleadings will be served much sooner than that, and will require plaintiff to show
`cause before then if it appears that there is undue delay.
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`C.
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`ASSIGNMENT TO A MAGISTRATE JUDGE
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`Under 28 U.S.C. § 636, the parties may consent to have a Magistrate
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`Judge preside over all proceedings, including trial. The Magistrate Judges who
`accept those designations are identified on the Central District’s website, which
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`Revised January 6, 2010
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 3 of 9 Page ID #:5
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`also contains the consent form. See ¶ N.
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`D.
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`EX PARTE PRACTICE
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`Ex parte applications are solely for extraordinary relief and should be
`used with discretion. See Mission Power Engineering Company v. Continental
`Casualty Co., 883 F. Supp. 488 (C. D. Cal. 1995). The Court will generally
`decide ex parte matters on the papers. Opposition to an ex parte application, if
`any, should be submitted within 24 hours.
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`E. APPLICATIONS AND STIPULATIONS FOR EXTENSIONS
`OF TIME
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`No stipulations extending scheduling requirements or modifying
`applicable rules are effective until and unless the Court approves them. Both
`applications and stipulations must set forth:
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`1. The existing due date or hearing date;
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`2. Specific, concrete reasons supporting good cause for granting the
`extension. In this regard, a statement that an extension “will promote settlement”
`is insufficient. The requesting party or parties must indicate the status of ongoing
`negotiations: Have written proposals been exchanged? Is counsel in the process of
`reviewing a draft settlement agreement? Has a mediator been selected?
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`3. Whether there have been prior requests for extensions, and
`whether these were granted or denied by the Court.
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`Revised January 6, 2010
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 4 of 9 Page ID #:6
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`F.
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`TRO’S AND INJUNCTIONS
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`Parties seeking emergency or provisional relief shall comply with
`F.R.Civ.P., Rule 65 and Local Rule 65. The Court will not rule on any application
`for such relief for at least 24 hours after the party subject to the requested order
`has been served; such party may file opposing or responding papers in the interim.
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`G.
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`CASES REMOVED FROM STATE COURT
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`All documents filed in state court, including documents appended to
`the complaint, answers and motions, must be refiled in this Court as a supplement
`to the Notice of Renewal, if not already included. 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 Local Rule 7.
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`H.
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`STATUS OF FICTITIOUSLY NAMED DEFENDANTS
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`This Court intends to adhere to the following procedures where a matter
`is removed to this Court on diversity grounds with fictitiously named defendants.
`(See 28 U.S.C. §§ 1441(a) and 1447.)
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`Plaintiff is normally expected to ascertain the identity of and serve
`1.
`any fictitiously named defendants within 120 days of the removal of the action to this
`Court.
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`Revised January 6, 2010
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 5 of 9 Page ID #:7
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`If plaintiff believes (by reason of the necessity for discovery or
`2.
`otherwise) that fictitiously named defendants cannot be fully identified within the
`120-day period, an ex parte application requesting permission to extend that period
`to effectuate service may be filed with this Court. Such application shall state the
`reasons therefor, and may be granted upon a showing of good cause. The ex parte
`application shall be served upon all appearing parties, and shall state that appearing
`parties may comment within seven (7) days of the filing of the ex parte application.
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`If plaintiff desires to substitute a named defendant for one of the
`3.
`fictitiously named parties, plaintiff first shall seek to obtain consent from counsel
`for the previously-identified 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 U.S.C. § 1447(c), (d).
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`I.
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`BANKRUPTCY APPEALS
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`Counsel shall comply with the ORDER RE PROCEDURE TO BE
`FOLLOWED IN APPEAL FROM BANKRUPTCY COURT issued at the time the
`appeal is filed in the District Court.
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`J. MOTIONS UNDER FED.R.CIV.P., Rule 12
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 6 of 9 Page ID #:8
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`Many motions to dismiss or to strike could be avoided if the parties
`confer in good faith (as they are required to do under L.R. 7-3), especially for
`perceived defects in a complaint, answer or counterclaim which could be corrected
`by amendment. See Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996) (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). Moreover, a
`party has the right to amend his complaint “once as a matter of course at any time
`before a responsive pleading is served.” Fed.R.Civ.P., Rule 15(a). A 12(b)(6)
`motion is not a responsive pleading and therefore plaintiff might have a right to
`amend. See Nolen v. Fitzharris, 450 F.2d 958, 958-59 (9th Cir. 1971); St.
`Michael’s Convalescent Hospital v. California, 643 F.2d 1369, 1374 (9th Cir.
`1981). And even where a party has amended his Complaint once or a responsive
`pleading has been served, the Federal Rules provide that leave to amend should be
`“freely given when justice so requires.” F.R.Civ.P., Rule 15(a). 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 that counsel for the plaintiff should carefully
`evaluate the defendant’s contentions as to the deficiencies in the complaint, and that
`in many instances the moving party should agree to any amendment that would cure
`a curable defect.
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`The moving party shall attach a copy of the challenged pleading to the
`Memorandum of Points and Authorities in support of the motion.
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`The foregoing provisions apply as well to motions to dismiss a
`counterclaim, answer or affirmative defense, which a plaintiff might contemplate
`bringing.
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`Revised January 6, 2010
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 7 of 9 Page ID #:9
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`K. REQUIREMENTS FOR BRIEFS
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`In addition to the requirements in Local Rule 11, the Court requires the
`following for all briefs:
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`1. No footnote shall exceed 5 lines. The Court strongly discourages
`the use of extensive footnotes as a subterfuge to avoid page limitations in the Local
`Rules.
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`2. All footnotes shall be in the same type size as text. See Local Rule
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`11-3.1.1.
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`3. Each case cited shall include a jump cite to the page or pages where
`the relevant authority appears (e.g., United States v. Doe, 500 U. S. 1, 14, 17
`(1997)).
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`Failure to follow these requirements may result in rejection of a brief for correction.
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`L. LEAD COUNSEL
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`Lead counsel shall appear on all dispositive motions, scheduling
`conferences, and settlement conferences. The Court does not entertain special
`appearances; only counsel of record may appear.
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`M. COURTESY COPIES
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`A courtesy copy of all electronically filed pleadings shall be delivered
`to Judge Selna’s courtesy copy drop on the tenth floor at the rear of the elevator
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`Revised January 6, 2010
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 8 of 9 Page ID #:10
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`lobby by noon the day following filing. Failure to make timely delivery of the
`courtesy copies may result in a delay in hearing a motion or ordering the
`matter off calendar.
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`N. ELECTRONIC COPIES
`
`When the Court requires an electronic copy of a document (e.g., with
`proposed jury instructions), a copy shall be submitted at time of filing in one the
`following manners: providing a copy on a disk, CD, or thumb drive in a labeled
`envelope and lodged with the clerk; or by e-mailing a copy to the Court Room
`Deputy (JVS_Chambers@cacd.uscourts.gov). Regardless of media, the document
`should be formatted in WordPerfect9 or higher.
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`O. WEBSITE
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`Copies of this Order and other orders of this Court are available on the
`Central District of California’s website, at “www.cacd.uscourts.gov” at Judge
`Selna’s home page located under “Judge’s Procedures and Schedules.”
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`P.
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`TENTATIVES–DAY OF HEARING AND WEB POSTING
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`The Court attempts to issue tentative rulings on each motion. Tentatives will
`be posted on the Court’s website: www.cacd.uscourts.gov/. From the home page,
`click on “Judges’ Procedures and Schedules” in the left column. From the list, click
`on “Hon. James V. Selna,” which will take you to Judge Selna’s page. Click on the
`red notice in the upper left: “Click here to view Tentative Rulings.” Then click on
`the desired ruling which comes up in a .pdf file which can be read with an Adobe
`Acrobat reader. Judge Selna attempts to post tentatives by late Friday afternoon
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`Case 8:11-cv-01862-DOC-JPR Document 5 Filed 12/07/11 Page 9 of 9 Page ID #:11
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`preceding the hearing date. Hard copies of tentatives will also be available from the
`clerk approximately 15 minutes before the hearing.
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`The Court thanks counsel and the parties for their anticipated
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`cooperation.
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`IT IS SO ORDERED.
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`Dated: December 7, 2011
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`____________________________
` James V. Selna
` United States District Judge
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