Mission Power Engineering Co. v. Continental Cas. Co.

• Citation: 883 F. Supp. 488
• Decision Date: 14 March 1995
• Docket Number: No. SACV 94-637-LHM (EEx).,SACV 94-637-LHM (EEx).
• Court: U.S. District Court — Central District of California
• Parties: MISSION POWER ENGINEERING COMPANY, etc., Plaintiff, v. CONTINENTAL CASUALTY COMPANY, etc., et al., Defendants.

883 F. Supp. 488

MISSION POWER ENGINEERING COMPANY, etc., Plaintiff, v. CONTINENTAL CASUALTY COMPANY, etc., et al., Defendants.

No. SACV 94-637-LHM (EEx).

United States District Court, C.D. California, Southern Division.

March 14, 1995.

Munger Tolles & Olson, Los Angeles, CA, for plaintiff.

Rubin, Eagan & Feder, Beverly Hills, CA, for defendants.

MEMORANDUM OF DECISION AND ORDER

EDWARDS, United States Magistrate Judge.

"Ex parte applications have reached epidemic proportions in the Central District." Judge Rymer warned us of this in 1989 in In re Intermagnetics America, Inc., 101 B.R. 191 (C.D.Cal.1989). Since then the abusive use of ex parte motions has worsened. This abuse is detrimental to the administration of justice and, unless moderated, will increasingly erode the quality of litigation and present ever-increasing problems for the parties, their lawyers, and for the court.

Before the court now is plaintiff's ex parte application for an order shortening time to hear plaintiff's motion to compel the return of some papers, allegedly papers that were privileged and that were inadvertently given to defendant in response to a request for production of documents. This is the seventh ex parte motion filed in this case in just the last two months. Ex parte motions have almost become the normal manner of communicating with the court in this case. In fact, defendant's opposition to the motion is not styled as an opposition but as another ex parte motion, namely, as an ex parte application for an order striking plaintiff's motion. Presumably, plaintiff's reply will be yet another ex parte motion, this time to strike defendant's ex parte response.

Ex parte motions are rarely justified, and it is necessary to explain again when their use is justified and when it is not. Lawyers also need to understand why the use of ex parte motions can be detrimental even to the party filing them. To understand the issues requires answers to three questions: What is an ex parte motion; what problems does its use create; and what does a proper ex parte motion consist of?

What is an ex parte motion?

The expression "ex parte motion" is a term of art. In its pure form it means a request a party makes to the court without any notice to the other side. These are made relatively infrequently by lawyers, but nonlawyers representing themselves are flooding the courts with them. Nonlawyers seeking advantage over their adversaries write personal letters to the judge, telephone the clerk or other staff members, or even stand outside the judge's chambers to try to slip in their private pejoratives about the lack of virtue of the opposition.

Lawyers at least are generally careful to limit their pure ex parte communications to those circumstances where such communications may be justified, namely, where notice to the adversary might nullify the ability ever to achieve the end sought. This could occur, for example, where there is a temporal urgency such that immediate and irreparable harm will occur if there is any delay in obtaining relief. ("The tomatoes will spoil if we don't move them immediately.") It could also occur where it is likely that, if given notice, someone would act improperly to frustrate the party's ability ever to obtain the relief sought. ("If we alert them, they will move the yacht before we can seize it.")

Regrettably, however, lawyers are the principal abusers of what Judge Rymer referred to as a "hybrid" form of ex parte communication: a request for action by the court made outside the framework of the rules. These are usually captioned, "Ex parte Application," "Ex parte Motion," or "Ex parte Request." They contain no notice of hearing, though they often ask the court to hold a hearing urgently. They purport to have been served on the other side, and, under the local rules of this district, they contain a declaration of counsel stating that he or she notified the opposing party, usually by telephone, and that the opposing party does or does not oppose the motion. The court either permits the opposing party to file opposing papers, or it calendars oral argument that is heard urgently, often by telephone conference call.

What problems do ex parte motions create?

The fact that opposing parties are usually given an opportunity to argue or file opposing papers does not mask the plain truth: these hybrid ex parte motions are inherently unfair, and they pose a threat to the administration of justice. They debilitate the adversary system. Though the adversary does have a chance to be heard, the parties' opportunities to prepare are grossly unbalanced. Often, the moving party's papers reflect days, even weeks, of investigation and preparation; the opposing party has perhaps a day or two. This is due primarily to gamesmanship. The opposing party is usually told by telephone when the moving party has completed all preparation of the papers and has a messenger on the way to court with them. The goal often appears to be to surprise opposing counsel or at least to force him or her to drop all other work to respond on short notice.

These hybrid ex parte motions also bring out the worst instincts of the lawyers. The moving party's lawyer perceives it to be the unethical conduct of the opposing counsel that made it necessary to file its motion in the first place. In plaintiff's moving papers, it is alleged that:

It is little wonder why attorneys are regarded with such disdain by the public at large given the duplicitous conduct of defendant's counsel and others of like ilk.... Argument in the alternative is one thing, but agreements and declarations in the alternative is nothing more than janusfaced mercenaries with no regard for one's role as an officer of the Court.

The opposing lawyer who has to abandon his other clients to deal urgently with the motion perceives the episode as just another indicator of the maleficence of the adversary. In this case, the opposing party did hastily put together a response and have it filed and messengered to chambers. The hostility exhibited in the opposition is not subtle:

Plaintiff's conduct is incredible. Plaintiff first notified defendant of its intention to file its discovery motion one day prior to filing the motion.... When defendant's counsel could not meet on only ten minutes' notice, plaintiff's counsel decided to go ahead and file its procedurally defective motion without meeting. Plaintiff's ambush tactics and utter disregard for the local rules is scandalous.

All of this detracts from a fundamental purpose of the adversary system, namely, to give the court the best possible presentation of the merits and demerits of the case on each side. The opposing party can rarely make its best presentation on such short notice. Its lawyers can sometimes be made to appear inept. Anything that tends to give unfair advantage to one side may, however, cause the court to compensate by giving the benefit of the doubt to the other side. This may result, ironically, in the moving party actually suffering an undeserved disadvantage due to the perception that it acted unfairly.

All derogatory allegations about an opponent in motion papers raise ethical problems for the lawyers and the court to the extent that the allegations are subjective or conclusory. When unsupportable allegations are made in regular noticed motions, they can to a great extent be neutralized by a well-prepared rebuttal. In papers prepared on short notice, however, the lawyers too often simply make allegations that have no supporting evidence to back them up. Even more pernicious is another tendency: the advocates draw conclusions that appear to be supported by voluminous exhibits, but are not borne out when the evidence is reviewed with more deliberation and more careful rebuttal than is possible in hasty hearings on ex parte motions. This poisoning of the well may or may not be deliberate, but it can taint the court's view of a lawyer, a party, or both.

A judge will rarely be willing to draw the conclusion that one member of the bar of this court is...