Benchmark Young Adult School, Inc. v. Launchworks Life Services, LLC et al, No. 3:2012cv02953 - Document 141 (S.D. Cal. 2015)
Court Description: ORDER denying without prejudice 108 Motion to File Documents Under Seal; granting 114 Motion for Oral Argument; granting 117 Motion for Hearing; granting in part and denying in part 130 Ex Parte Motion for Leave to File Sur-Reply; denying 132 Ex Parte Motion for Leave to File Corrected Joint Statement of Material Facts; denying 139 Ex Parte Motion for Order Shortening Time. Parties shall appear for oral argument addressing pending motions 50 , 91 , 113 , 115 , 116 , 121 , and 138 . Motion Hearing set for 5/27/2015 02:00 PM in Courtroom 4B before Judge Cynthia Bashant. Benchmark shall file sur-reply addressing only Mr. Garrison's testimony by 5/1/2015. Signed by Judge Cynthia Bashant on 4/30/2015. (jah)
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Benchmark Young Adult School, Inc. v. Launchworks Life Services, LLC et al Doc. 141 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENCHMARK YOUNG ADULT SCHOOL, INC., 12 13 14 15 16 Case No. 12-cv-02953-BAS(BGS) ORDER: (1) GRANTING MOTIONS FOR ORAL ARGUMENT (ECF NO. 114, 117); (2) SETTING ORAL ARGUMENT (ECF NOS. 50, 91, 113, 115, 116, 121, 138); (3) DENYING WITHOUT PREJUDICE MOTION TO SEAL (ECF NO. 108); (4) DENYING IN PART AND GRANTING IN PART EX PARTE MOTION FOR LEAVE TO FILE A SURREPLY (ECF NO. 130); (5) DENYING EX PARTE MOTION TO FILE CORRECTED JOINT STATEMENT (ECF NO. 132); AND (6) DENYING EX PARTE MOTION FOR ORDER SHORTENING TIME (ECF NO. 139) Plaintiff, v. LAUNCHWORKS LIFE SERVICES, LLC, ET AL. Defendants. 17 18 19 20 21 22 23 24 25 26 AND RELATED COUNTERCLAIM 27 28 –1– 12cv2953 Dockets.Justia.com 1 Pending before the Court are motions to strike (ECF Nos. 50, 116, 121) and a 2 motion for summary judgment (ECF No. 115) filed by defendant and 3 counterclaimant Launchworks Life Services, LLC (“Launchworks”); and a motion 4 to strike affirmative defenses (ECF No. 91), a motion for summary judgment (ECF 5 No. 113), and a motion for preliminary injunction (ECF No. 138) filed by plaintiff 6 and counterdefendant Benchmark Young Adult School, Inc. (“Benchmark”). Both 7 parties have also filed motions for oral argument in relation to their respective 8 motions for summary judgment. (ECF Nos. 114, 117.) 9 Also pending before the Court is a motion to file documents under seal (ECF 10 No. 108), an ex parte motion for leave to file a sur-reply in opposition to 11 Launchworks’ motion for summary judgment (ECF No. 130), and an ex parte 12 motion for an order shortening time and oral argument on Benchmark’s motion for 13 preliminary injunction (ECF No. 139) filed by Benchmark; and an ex parte motion 14 for leave to file a corrected joint statement of material facts relating to the cross- 15 motions for summary judgment (ECF No. 132) filed by Launchworks. 16 I. ORAL ARGUMENT 17 Having read and considered the moving papers, and good cause appearing, 18 the Court GRANTS the requests for oral argument (ECF Nos. 114, 117). 19 Accordingly, the Court ORDERS the parties to appear on May 27, 2015 at 2:00 20 p.m. in Courtroom 4B for oral argument to address the motions. See Civ. L.R. 21 7.1(d)(1). The Court also ORDERS the parties to appear for oral argument to 22 address all remaining pending motions. (See ECF Nos. 50, 91, 113, 115, 116, 121, 23 138.) 24 II. MOTION TO SEAL 25 “Historically, courts have recognized a ‘general right to inspect and copy 26 public records and documents, including judicial records and documents.’” 27 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing 28 Nixon v. Warner Communs., Inc., 435 U.S. 589, 597 & n. 7 (1978)). “Unless a –2– 12cv2953 1 particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in 2 favor of access’ is the starting point.” Id. (citing Foltz v. State Farm Mut. Auto Ins. 3 Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records 4 relating to dispositive motions bear the burden of overcoming the presumption with 5 “compelling reasons” that outweigh the general history of access and the public 6 policies favoring disclosure. Id. at 1178–79. 7 Records attached to non-dispositive motions, however, are not subject to the 8 strong presumption of access. Id. at 1179. Because the documents attached to non- 9 dispositive motions “are often unrelated, or only tangentially related, to the 10 underlying cause of action,” parties moving to seal must meet the lower “good 11 cause” standard of Rule 26(c). 12 particularized showing of ‘good cause’ under Federal Rule of Civil Procedure 26(c) 13 is sufficient to preserve the secrecy of sealed discovery documents attached to non- 14 dispositive motions.” In re Midland Nat. Life Ins. Co. Annuity Sales Practices 15 Litig., 686 F.3d 1115, 1119 (9th Cir. 2012); see also Kamakana, 447 F.3d at 1180 16 (requiring a “particularized showing” of good cause); Beckman Indus., Inc. v. Int’l 17 Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A blanket protective order is not itself 18 sufficient to show “good cause” for sealing particular documents. See Foltz, 331 19 F.3d at 1133; Beckman Indus., Inc., 966 F.2d at 476; San Jose Mercury News, Inc. 20 v. U.S. Dist. Ct., N. Dist., 187 F.3d 1096, 1103 (9th Cir. 1999). Id. (internal quotations omitted). “[A] 21 Benchmark seeks to file excerpts of certain deposition transcripts under seal 22 submitted in support of its motion for summary judgment. (ECF No. 108.) A 23 summary judgment motion is a dispositive motion and therefore Benchmark must 24 demonstrate compelling reasons for sealing the documents. See Kamakana, 447 25 F.3d at 1181. In support of its motion to seal, Benchmark relies exclusively on the 26 Protective Order entered in this case (ECF No. 20). (ECF No. 108 at pp. 1-2.) A 27 blanket protective order, however, is insufficient to meet the “compelling reasons” 28 standard. See Foltz, 331 F.3d at 1136; Kamakana, 447 F.3d at 1183. Standing –3– 12cv2953 1 alone, a blanket protective order is not even sufficient to meet the lower “good 2 cause” standard. Under the “compelling reasons” standard, the moving party must 3 present “articulable facts identifying the interests favoring continued secrecy” and 4 “show that these specific interests overc[o]me the presumption of access by 5 outweighing the public interest in understanding the judicial process.” Kamakana, 6 447 F.3d at 1179-81 (internal quotation marks omitted). Due to its failure to meet 7 the “compelling reasons” standard, the Court DENIES Benchmark’s motion to seal 8 WITHOUT PREJUDICE. 9 III. EX PARTE MOTION FOR LEAVE TO FILE SUR-REPLY 10 Benchmark moves ex parte for leave to file a sur-reply in opposition to 11 Launchworks’ motion for summary judgment. (ECF No. 130.) Benchmark argues 12 there is good cause to file its proposed sur-reply “because [Launchworks] cited new 13 authorities and evidence for the first time in its Reply brief.” (Id. at p. 2, lines 11- 14 12.) Specifically, Benchmark asserts Launchworks argued for the first time in its 15 Reply that it can prevail on its “innocent user defense” and attached to its Reply 16 new deposition excerpts that are misleading. (Id. at pp. 2-3.) Launchworks filed an 17 opposition to the ex parte motion arguing that it did not raise any new arguments or 18 rely on any new evidence for the first time in its Reply. (ECF No. 134.) 19 The Court agrees with Launchworks that the “innocent user defense” was not 20 raised for the first time in its Reply. To the extent Benchmark desires to further 21 address the arguments raised in the papers on the “innocent user defense,” it may do 22 so at oral argument on the motion. 23 The Court also agrees that Launchworks’ citation to Bruce Garrison’s 24 testimony in its Reply was in response to Benchmark’s use of Mr. Garrison’s 25 testimony in its Opposition to argue that “[t]here is a genuine factual dispute as to 26 whether Defendant actually knew about Plaintiff’s business when it adopted the 27 name Benchmark.” (See ECF No. 120 at pp. 2-4.) However, the parties cite to 28 different portions of Mr. Garrison’s testimony and the excerpt Benchmark desires –4– 12cv2953 1 to submit with its sur-reply was not previously cited nor addressed. Where new 2 evidence is presented in a reply, a district court should not consider the new 3 evidence without giving the non-movant the opportunity to respond. See Provenz v. 4 Miller, 102 F.3d 1478, 1483 (9th Cir. 1996); El Pollo Loco, Inc. v. Hashim, 316 5 F.3d 1032, 1040-41 (9th Cir. 2003). The Court therefore finds it appropriate to 6 allow Benchmark to file the section of its proposed sur-reply addressing Mr. 7 Garrison’s testimony. For the foregoing reasons, Benchmark’s ex parte motion (ECF No. 130) is 8 9 10 GRANTED IN PART and DENIED IN PART. IV. EX PARTE MOTION FOR LEAVE TO FILE CORRECTED JOINT 11 STATEMENT OF MATERIAL FACTS 12 Launchworks moves ex parte for leave to file a corrected joint statement of 13 material facts in support of and in opposition to the cross-motions for summary 14 judgment. (ECF No. 132.) Launchworks seeks leave because it “erroneously cited 15 to [ECF] No. 115-4 in its Joint Statement of Facts rather than [ECF] No. 115-8.” 16 (Id. at p. 2, lines 23-24.) Launchworks argues Benchmark will not suffer prejudice 17 because the documents at issue have been on the record since April 2014 and 18 Benchmark has undoubtedly seen them. (ECF No. 132 at p. 3.) Benchmark 19 opposes the ex parte motion. (ECF No. 133.) 20 The parties filed cross-motions for summary judgment on December 31, 21 2014 and January 2, 2015. (ECF Nos. 113, 115.) 22 Launchworks filed a “Joint Statement of Undisputed Material Facts In Support Of 23 And In Opposition to Cross-Motions For Summary Judgment.” (ECF No. 129.) 24 Upon review, the parties’ “Joint Statement” notably contains both disputed and 25 undisputed facts in contravention of the purpose behind the filing requirement of a 26 joint statement of undisputed material facts, which is to promote efficiency in the 27 Court’s review of often lengthy and complicated cross-motions for summary 28 judgment. The Court further notes that all references to ECF No. 115-4 in the –5– On February 3, 2015, 12cv2953 1 “Joint Statement” concern disputed facts. Launchworks did not obtain leave to file 2 a separate statement of disputed facts. The Court is therefore not going to consider 3 or rely upon those portions of the Joint Statement. Accordingly, Launchworks’ ex 4 parte motion for leave to file a corrected joint statement of material facts is 5 DENIED. 6 V. EX PARTE MOTION FOR ORDER SHORTENING TIME 7 On April 24, 2015, Benchmark filed a motion for preliminary injunction with 8 a hearing date for briefing purposes of May 26, 2015. (ECF No. 138.) Benchmark 9 concurrently filed an ex parte motion seeking an order shortening time on its 10 motion for preliminary injunction and setting an expedited briefing schedule and 11 oral argument. (ECF No. 139.) Benchmark argues it will suffer irreparable harm if 12 its motion is not heard before May 28, 2015. (Id. at p. 3.) Launchworks opposes 13 the motion. (ECF No. 140.) 14 The Court has set oral argument on Benchmark’s motion for preliminary 15 injunction for May 27, 2015. Therefore, the Court does not find an expedited 16 briefing schedule to be appropriate and Benchmark’s ex parte motion for an order 17 shortening time is DENIED. The parties should proceed with briefing the motion 18 for preliminary injunction in accordance with Local Civil Rule 7.1(e) based on a 19 hearing date of May 26, 2015. 20 VI. ORDER 21 For the foregoing reasons, the Court ORDERS as follows: 22 1. 114, 117). 23 24 The parties’ motions for oral argument are GRANTED (ECF Nos. 2. The parties shall appear on May 27, 2015 at 2:00 p.m. in Courtroom 25 4B for oral argument to address all pending motions (ECF Nos. 50, 91, 26 113, 115, 116, 121, and 138). 27 28 3. Benchmark’s motion to file documents under seal is DENIED WITHOUT PREJUDICE (ECF No. 108). –6– 12cv2953 1 4. Benchmark’s ex parte motion for leave to file a sur-reply is DENIED 2 IN PART and GRANTED IN PART (ECF No. 130). Benchmark 3 shall file its proposed sur-reply addressing only Mr. Garrison’s 4 testimony no later than May 1, 2015. 5 5. Launchworks’ ex parte motion for leave to file a corrected joint 6 statement of material facts in support of and in opposition to the 7 parties’ cross-motions for summary judgment (ECF No. 132) is 8 DENIED. 9 10 11 6. Benchmark’s ex parte motion for an order shortening time on its motion for preliminary injunction (ECF No. 139) is DENIED. IT IS SO ORDERED. 12 13 DATED: April 30, 2015 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –7– 12cv2953
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