TRACHSEL v. BUCHHOLZ

RONALD WHYTE, District Judge

On April 30, 2008, plaintiffs filed a complaint against numerous defendants involving the purchase of investment property by four defendants, Ronald Buchholz, Charice Fisher, RDB Development, LLC and Solomon Capital, LLC ("the Buchholz defendants" or "defendants") allegedly from the remaining defendants, Jonathon Vento, Grace Capital, LLC, Grace Capital dba Grace Communities, Donald Zeleznak, Z-Loft LLC, and Zeleznak Property Management, LLC dba Keller Williams Realty ("the Grace defendants") and Keller Williams Realty Inc. ("KWRI").

On May 28, 2008, before this action was assigned to the undersigned, the Grace defendants filed a motion to dismiss for lack of personal jurisdiction, improper venue and for failure to state claims against them under Fed.R.Civ.P. 12(b)(6). As a result of the reassignment, that motion was continued until August 8, 2008. On July 17, 2008, plaintiffs filed an opposition to the motion to the Grace defendants' motion to dismiss. The Grace defendants did not file a reply.

By the court's own motion, the Grace defendants' motion to dismiss was continued to September 5, 2008 in order to consolidate the hearing with a separate motion to dismiss filed by KWRI. The clerk's notice continuing the motion noted that "defendants Jonathon Vento, Grace Capital, LLC., Donald Zeleznak, Z-lofts, LLC, and Zeleznak Property Management, LLC shall not be permitted to file a reply brief on their motion to dismiss, as the time for doing so on the previously-noticed schedule has now passed" unless otherwise stipulated by the parties. The Grace defendants sought a stipulation from plaintiffs permitting them to file a reply. Plaintiffs declined to so stipulate.

The Grace defendants now seek permission from the court to file a reply brief. Counsel asserts that he did not receive an electronic notification that plaintiffs had filed an opposition due to technical difficulties with his firm's email server and thus was unaware that they had done so until he requested and received a copy of the opposition from plaintiffs' counsel on July 28, 2008. Decl. Michael Descalso, Docket No. 79, ¶ 3. By that time, the deadline for submitting a reply under N.D. Cal. Civil L.R. 7-3(c) had passed. Counsel argues that plaintiffs will suffer no prejudice regarding the late-filed reply as they would ordinarily not be expected to file a response to a reply.

Plaintiffs assert that counsel should have known even without notification that the Grace defendants' reply was due under the local rules and could have simply visited the ECF website docket to confirm that an opposition had been filed. They further assert that they will suffer prejudice because the Grace defendants will have had the benefit of reviewing the arguments in the motion to dismiss by KWRI and plaintiffs' opposition thereto.

The court is sympathetic to the Grace defendants' counsel's lack of electronic notification, especially in light of the continuance of the hearing date for their motion to dismiss due to the reassignment of the case to the undersigned. It is also unpersuaded that plaintiffs will suffer any prejudice from the late-filed reply, particularly given that the Grace defendants filed their opposition two weeks prior to the rescheduled hearing and that they will likely raise the same arguments at the hearing. In the interest of efficiency and considering the motion to dismiss on the merits, the court will therefore consider the proposed reply brief submitted on August 21, 2008 at Docket No. 80.