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

United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

PAMELA KOUSSA,

Plaintiff,

v.

MING YEUNG, et al.,

Defendants.

Case No.16-cv-05137-JSC 

ORDER RE: MOTION TO DISMISS

AND EX PARTE APPLICATION TO 

STAY ACTION FOR 30 DAYS

Re: Dkt. No. 11

Plaintiff Pamela Koussa brings this action against Defendants Ming Yeung, Jia Yeung, and 

Leonicio Perez Santiago for disability discrimination in connection with access barriers she 

encountered at the Pup Hut, a restaurant in Richmond, California. On November 7, 2016, 

Defendants Ming Yeung and Jia Yeung filed a notice of motion to dismiss the complaint in its 

entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 11.) They noticed the 

motion for January 19, 2016 and represented that the “Memorandum of Points and Authorities, 

declaration, and supporting documents shall be filed in due course within 35 days of the date of 

the hearing set forth above.” (Id. at 2.) Plaintiff has since filed an objection to the motion to 

dismiss because, to date, Defendants still have not filed their memorandum of points and 

authorities. (Dkt. No. 13.)

Local Rule 7-2(b) requires parties to file “[i]n one filed document . . . the “notice of 

motion” . . . and “the points and authorities in support of the motion[.]” Defendants’ failure to 

comply with the Local Rule leaves Plaintiff unable to meaningfully respond to the motion and 

renders the motion procedurally improper, which alone is sufficient to deny the motion. See TriValley CARES v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a motion 

as the result of a failure to comply with local rules is well within a district court’s discretion.”);

Case 3:17-cv-00638-JSC Document 15 Filed 11/22/16 Page 1 of 2
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

United States District Court

Northern District of California

see, e.g., Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding 

district court’s denial of motion to tax costs which was not in compliance with the court’s local 

rules). 

In response to Plaintiff’s motion, instead of filing the memorandum of points and 

authorities, Defendants have filed an ex parte application to stay this action for 30 days. (Dkt. No. 

14.) This application is also procedurally improper as it fails to cite a statute, Federal Rule, local 

rule or Standing Order that authorizes filing an ex parte motion in these circumstances. See N.D. 

Cal. Civ. L.R. 7-10. The Court nevertheless considers the application, in which Defendants 

concede that Plaintiff’s objection is well-taken and state that they “intend to withdraw the motion 

and refile[.]” (Dkt. No. 14 ¶ 2.) Defendants seek to stay the case until December 21, 2016 and 

request an extension of time to file the motion to dismiss. The Court declines to stay the case. 

But because this is Defendants’ first request for an extension of time to respond to the complaint, 

the Court will grant an extension.

Lastly, Defendants attached to their ex parte application a letter from Plaintiff’s counsel to 

Defendant Ming Yeung regarding failure to answer the complaint and the possibility of default 

entered against him. The Court reminds the parties not to engage in ex parte communication with 

represented parties.

Accordingly, the Court DENIES Defendants’ motion to dismiss without prejudice to 

refiling in compliance with the Local Rules. The Court DENIES Defendants’ ex parte application 

to stay but grants Defendants’ request for an extension of time to respond to the complaint. 

Defendants shall file an answer or motion to dismiss by December 21, 2016. 

This Order terminates Docket Nos. 11 and 14.

IT IS SO ORDERED.

Dated: November 22, 2016

JACQUELINE SCOTT CORLEY

United States Magistrate Judge

Case 3:17-cv-00638-JSC Document 15 Filed 11/22/16 Page 2 of 2