United States District Court, D. Nevada
ORDER (DOCKET NO. 26)
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
before the Court is a motion to amend scheduling order filed
by Plaintiffs on an emergency basis. Docket No. 26.
“The filing of emergency motions is disfavored because
of the numerous problems they create for the opposing party
and the court resolving them.” Cardoza v.
Bloomin' Brands, Inc., 141 F.Supp.3d 1137, 1140 (D.
Nev. 2015) (citing In re Intermagnetics America,
Inc., 101 B.R. 191, 193-194 (C.D. Cal. 1989)).
“Safeguards that have evolved over many decades are
built into the Federal Rules of Civil Procedure and the Local
Rules of this court.” Mission Power Eng'g Co.
v. Continental Cas. Co., 883 F.Supp. 488, 491 (C.D. Cal.
1995). A request to bypass the default procedures through the
filing of an emergency motion impedes the adversarial
process, disrupts the schedules of the Court and opposing
counsel, and creates an opportunity for bad faith
gamesmanship. Cardoza, 141 F.Supp.3d at 1140-41. As
a result, the Court allows motions to proceed on an emergency
basis in only very limited circumstances. See, e.g.,
Local Rule 7-4(b) (“Emergency motions should be
motions must as a threshold matter meet several technical
requirements outlined in the local rules. See, e.g.,
Local Rule 26-7(d) (emergency discovery motions must satisfy
the requirements outlined in Local Rule 7-4). First, the face
of the motion itself must be entitled an “Emergency
Motion” so the Court has prompt notice that expedited
relief is being requested. Local Rule 7-4(a). Second, the
emergency motion must be accompanied by an affidavit
providing several key facts necessary for the Court to
determine whether, in fact, an emergency exists and allowing
the Court to provide the fairest, most efficient resolution.
Id. This affidavit must include a detailed
description of the nature of the emergency. See Id.
The affidavit must also provide the contact information
(telephone number and office addresses) of the movant and all
other affected parties. See Id. The affidavit must
also provide a certification that, despite personal
consultation and sincere effort to do so, the movant was
unable to resolve the matter without court action. See,
e.g., Local Rule 7-4(a)(3). If the circumstances are
such that personal consultation is truly not possible, the
movant must provide a detailed explanation why that is the
case so the Court can evaluate whether to exercise its
discretion to decide the motion despite the lack of a proper
pre-filing conference. See id. Similarly, if no
notice whatsoever was provided to the opposing party
regarding the filing of the motion, the affidavit must
include a detailed explanation of why it was not practicable
to provide that notice. See Id. Concurrently with
the filing of an emergency motion, or promptly thereafter,
the movant must inform the courtroom administrators of the
assigned judges that the motion was filed. Local Rule 7-4(d).
these technical requirements are not met, the emergency
motion may be denied. Local Rule 7-4(b). If these technical
requirements are met, the Court will turn to the substantive
requirements for filing an emergency motion. When a party
files a motion on an emergency basis, it is within the sole
discretion of the Court to determine whether any such matter
is, in fact, an emergency. See Local Rule 7-4(c).
Generally speaking, an emergency motion is properly presented
to the Court only when the movant has shown (1) that it will
be irreparably prejudiced if the Court resolves the motion
pursuant to the normal briefing schedule; and (2) that the
movant is without fault in creating the crisis that requires
emergency relief or, at the very least, that the crisis
occurred because of excusable neglect. Cardoza, 141
F.Supp.3d at 1142 (citing Mission Power, 883 F.Supp.
at 492). If there is no irreparable prejudice, sufficient
justification for bypassing the default briefing schedule
does not exist and the motion may be properly decided on a
non-expedited basis. Cardoza, 141 F.Supp.3d at
1142-43. If there is irreparable prejudice but the movant
created the crisis, the Court may simply deny the relief
sought. Id. at 1143. The relevant inquiry is not
whether the opposing party was at fault with respect to the
underlying dispute, but rather “it is the creation of
the crisis-the necessity for bypassing regular motion
procedures-that requires explanation.” Mission
Power, 883 F.Supp. at 493. For example, when an attorney
knows of the existence of a dispute and unreasonably delays
in bringing that dispute to the Court's attention until
the eleventh hour, the attorney has created the emergency
situation and the request for relief may be denied outright.
See Cardoza, 141 F.Supp.3d at 1143 (collecting
cases). Quite simply, emergency motions “are not
intended to save the day for parties who have failed to
present requests when they should have.”
Intermagnetics America, 101 B.R. at 193; see
also Local Rule 7-4(b) (“[The] failure to
effectively manage deadlines, discovery, trial, or any other
aspect of litigation does not constitute an
instance, Plaintiffs have met neither of the substantive
requirements for an emergency motion. The reason provided for
filing the motion on an emergency basis is that the deadline
for Plaintiffs to disclose their experts was not extended in
the stipulation to extend discovery deadlines and, therefore,
remains September 5, 2017, the date set in the initial
scheduling order. Docket Nos. 26 at 4, 14 at 3.
Plaintiffs' counsel submits that, on September 15, 2017,
she became aware that the stipulation to extend discovery
deadlines did not include a deadline for Plaintiffs to
disclose their experts; this discovery is one week after the
Court granted the stipulation; nine days after Plaintiffs saw
the stipulation for a second time to add a signature; and
fifteen days after Defendant sent Plaintiffs a draft of the
stipulation to review before filing it with the
Court. Docket No. 26 at 5-7. Plaintiffs'
counsel waited three weeks from discovering the issue to file
this emergency motion. Docket No. 26. Moreover, Plaintiffs'
counsel provides no explanation why the pending motion was
filed ten days after Defendant's counsel stated he would
not stipulate to additional time for expert disclosure.
Id. at 7. The Court finds that, although Plaintiffs
did not create the underlying issue of the omitted expert
disclosure deadline in the stipulation, their omission in
discovering the issue is not excusable neglect and they are
not without fault in creating the crisis.
there is no irreparable harm identified. Plaintiffs cite
reasons why they would suffer irreparable harm if they were
unable to disclosure their expert witnesses but do not cite
reasons why they “will be irreparably prejudiced unless
the motion is heard on an expedited basis.”
Cardoza, 141 F.Supp.3d at 1142; see also
Docket No. 26.
reasons outlined above, the Court finds the pending motion
shall be briefed based on the default timetable in the
Court's Local Rules and will be resolved in the ordinary
 Plaintiffs' counsel admits that,
though she saw the exact stipulation prior to its filing, she
“did not review all of the dates as carefully as [she]
should have....” Docket No. 26 at 5.
 Plaintiffs' counsel is advised
that the undersigned's law clerk did not offer a
“simple solution” to counsel but merely advised
her to file any appropriate motions on the docket if she
needed to amend the scheduling order. Docket No. 26 at 6.
Further, counsel is advised for the third time that Local
Rule IA 7-2 forbids a party or attorney from making an ex
parte communication by calling chambers, especially to
ask for guidance on filing a motion on the docket or timing
of a judge's order. If a party seeks relief from the
Court, that party may file the appropriate motion on the
docket. Any further attempts by Plaintiffs' counsel to
call chambers ex parte may result in
 The Court does not find that this
three-week time period equates to Plaintiffs' submission
that they “immediately sought to amend the Scheduling
Order upon learning of Defendant's counsel's omission
of a new date for Plaintiffs' expert ...