Ex Parte Application

i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX PARTE APPLICATION WHAT IS THE DOCUMENT? Expedited request by a party for an order or other relief. WHAT ARE THE APPLICABLE FEDERAL/LOCAL COURT RULES? 1. L.R. 7-19 SPECIAL RULES OR OTHER REQUIREMENTS 1. Must give notice to opposing counsel, ask about any opposition and prepare declaration re: notice. 2. Application must be accompanied by memorandum of points and authorities explaining why relief is being sought on an ex parte basis. 3. Under separate cover, submit proposed order with phrase “Presented by” on the left side of the last page. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEIN & ASSOCIATES Michael D. Stein (SBN 132540) 5235 West Allen Street Suite 200 Los Angeles, CA 90067 Tel: (213) 555-0994 Fax: (213) 555-0995 Attorneys for Plaintiff SCOTT ALAN WOODWARD UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SCOTT ALAN WOODWARD, Plaintiff, vs. B-2 VIDEO INCORPORATED, a Missouri corporation; PETER JOHNSON, an individual; and DOES 1 through 20 inclusive, Defendants. ) ) ) ) )))))) ))) )) ) ) ) ) )) ) ) ) ) ) ) ) Case No.: EX PARTE APPLICATION BY PLAINTIFF SCOTT ALAN WOODWARD FOR ORDER NUNC PRO TUNC CORRECTING REQUEST FOR DISMISSAL OF FIRST AMENDED COMPLAINT AND CLERK’S ENTRY OF DISMISSAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL D. STEIN ) 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Scott Alan Woodward (“Plaintiff”) hereby applies ex parte for an order correcting nunc pro tunc Plaintiff’s March 11, 2004 Request for Dismissal of its First Amended Complaint and the Clerk’s March 16, 2004 entry of dismissal on Plaintiff’s First Amended Complaint. The correction is requested to clarify that the dismissal extends only to defendant B-2 Video Incorporated (“B-2”) and not to any other defendants. This application is made on the following grounds: 1. On February 9, 2004, Plaintiff filed its First Amended Complaint against B-2 and Peter Johnson (“Johnson”). 2. On March 5, 2004, a settlement agreement (“the Settlement Agreement”) in connection with the First Amended Complaint was executed between Plaintiff and B-2. A true and correct copy of the Settlement Agreement is attached as Exhibit “A” to the Declaration of Michael D. Stein (“Stein Declaration”) filed concurrently herewith. 3. Johnson was not a party to the Settlement Agreement. 4. As part of the Settlement Agreement, Plaintiff agreed to deliver “to [B-2] a dismissal, with prejudice, of its First Amended Complaint as against [B-2], in the form attached hereto as Exhibit “A.” [Emphasis added]. 5. Although the Settlement Agreement’s express language indicated that Plaintiff’s dismissal of the First Amended Complaint extended only to B-2, and not to Johnson, Plaintiff’s 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Request for Dismissal of the First Amended Complaint inadvertently stated simply that the First Amended Complaint would be dismissed, instead of specifying that it was limited to B-2. A true and correct copy of Plaintiff’s Request for Dismissal is attached as Exhibit “B” to the Stein Declaration. 6. The Court Clerk entered the dismissal on Plaintiff’s First Amended Complaint on March 16, 2004. 7. Plaintiff applies to the Court for an Order nunc pro tunc correcting Plaintiff’s March 11, 2004 Request for Dismissal of the First Amended Complaint and the Clerk’s March 16, 2004 entry of dismissal to state that the dismissal extends only to B-2, thereby making it consistent with the Settlement Agreement. DATED: March 31, 2004 STEIN & ASSOCIATES By: _________________________________ Michael D. Stein Attorneys for Plaintiff SCOTT ALAN WOODWARD 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF MATERIAL FACTS [ADD SUMMARY OF MATERIAL FACTS HERE] II. LEGAL DISCUSSION [ADD LEGAL DISCUSSION HERE] III. CONCLUSION For all of the foregoing reasons, plaintiff Scott Alan Woodward respectfully requests that the instant ex parte application be granted. DATED: March 31, 2004 STEIN & ASSOCIATES By: _________________________________ Michael D. Stein Attorneys for Plaintiff SCOTT ALAN WOODWARD 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF MICHAEL D. STEIN MICHAEL D. STEIN declares: 1. I am an attorney at law, duly licensed and entitled to practice law in the State of California and before this Court. I am a partner in the law firm of Stein & Associates, counsel of record for plaintiff Scott Alan Woodward (“Plaintiff”) in the above-captioned action. 2. By virtue of the foregoing, I have personal knowledge of the facts set forth in this Declaration and, if called upon as a witness, could and would testify competently to these facts under oath. 3. On February 9, 2004, Plaintiff filed its First Amended Complaint against B-2 and Peter Johnson (“Johnson”). 4. On March 5, 2004, a settlement agreement (“the Settlement Agreement”) in connection with the First Amended Complaint was executed between Plaintiff and defendant B-2 Video Incorporated (“B-2”). A true and correct copy of the Settlement Agreement is attached hereto as Exhibit “A” and is incorporated herein by this reference. Johnson was not a party to the Settlement Agreement. 5. As part of the Settlement Agreement, Plaintiff agreed to deliver “to [B-2] a dismissal, with prejudice, of its First Amended Complaint as against [B-2], in the form attached hereto as Exhibit “A.” [Emphasis added]. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Although the Settlement Agreement’s express language indicated that Plaintiff’s dismissal of the First Amended Complaint extended only to B-2, and not to Johnson, Plaintiff’s Request for Dismissal of the First Amended Complaint inadvertently stated simply that the First Amended Complaint would be dismissed, instead of specifying that it was limited to B-2. A true and correct copy of Plaintiff’s Request for Dismissal is attached hereto as Exhibit “B” and is incorporated herein by this reference. The Court Clerk entered the dismissal on Plaintiff’s First Amended Complaint on March 16, 2004. 7. On July 16, 2004, at 9:32 a.m., I contacted Joanna Kim, Esq., counsel for defendant B-2 Video Incorporated, and advised her of Plaintiff’s intention to file the instant ex parte application and of the nature of the requested relief. Ms. Kim stated that she did not oppose the application. 9. On July 16, 2004, at 9:48 a.m., I contacted Karl R. Stutman, Esq., counsel for defendant Peter Johnson, and advised him of Plaintiff’s intention to file the instant ex parte application and of the nature of the requested relief. Mr. Stutman stated he intended to oppose the application. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on July 16, 2004 at Los Angeles, California. __________________________ Michael D. Stein 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss: COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action. My business address is 5235 West Allen Street Suite 200, Los Angeles, CA 90067. On July 16, 2004, I served the foregoing documents described as EX PARTE APPLICATION BY PLAINTIFF SCOTT ALAN WOODWARD FOR ORDER NUNC PRO TUNC CORRECTING REQUEST FOR DISMISSAL OF FIRST AMENDED COMPLAINT AND CLERK’S ENTRY OF DISMISSAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL D. STEIN on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Peter Crawford, Esq. 27255 Van Buren Road Torrance, California 93627 ___ BY MAIL I deposited such envelope into the Firm’s office mail at Los Angeles, California. I am readily familiar with the Firm’s practice of collection and processing correspondence for mailing. Under that practice, in the ordinary course of business, the mail is affixed with postage thereon fully prepaid and deposited with the U.S. Postal Service in Los Angeles, California on the same day. I am aware that on motion of a party served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one (1) day after the date of deposit for mailing in this affidavit. ___ BY PERSONAL SERVICE I hand delivered such envelope to the offices of the addressee(s) listed above. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed July 16, 2004 at Los Angeles, California. _____________________________ Harriet Evans