UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Rockwood

and Roxana Marchosky

v. Civil No. 08-cv-168-JL

SKF USA Inc.

O R D E R

Defendant SKF, Inc. has filed (1) a motion for

reconsideration of this court’s order granting the plaintiffs’ ex

parte motion for an extension of their deadline to obtain new

counsel in this action (the court previously allowed their former

counsel to withdraw) and (2) a motion to unseal the ex parte

motion. SKF argues that, by granting the extension on an ex

parte basis, the court “deprived [SKF] of due process of law” and

participated in creating “an appearance of impropriety.” Indeed,

SKF goes so far as to suggest that the court violated Canon 3A(4)

of the Code of Conduct for United States Judges, which states--in

the outdated version quoted by SKF--“[a] judge should accord

every person who is legally interested in a proceeding, or the

person’s lawyer, full right to be heard according to law and,

except as authorized by law, should neither initiate nor consider

Case 1:08-cv-00168-JL Document 162 Filed 04/19/10 Page 1 of 5
ex parte communications on the merits, or procedures affecting

the merits, of a pending or impending proceeding.”1

Before deciding to level these extremely serious charges,

SKF’s counsel--who include an highly experienced litigator from a

prominent Philadelphia law firm and a well-regarded New Hampshire

attorney who regularly appears before this court--would have been

well-advised to check the rules, which specifically authorize

this court’s procedural handling of the plaintiffs’ motions. 

First, Rule 6(b)(1) of the Federal Rules of Civil Procedure

provides: “When an act may or must be done within a specified

time, the court may, for good cause, extend the time (A) with or

without motion or notice if the court acts, or if a request is

made, before the original time or its extension expires.”

As a number of courts have recognized, this rule expressly

allows extensions of time “without notice,” i.e., on an ex parte

basis (provided, as was the case here, the extension is asked or

given before the deadline in question passes). See, e.g., Cane

Creek Cycling Components, Inc. v. Tien Hsin Indus. Co., No. 07-

133, 2007 WL 3028321, at *1 (W.D.N.C. Oct. 15, 2007); Wilkerson

v. Jones, 211 F. Supp. 2d 856, 858 (E.D. Mich. 2002); Patel v.

This is the version of Canon 3A(4) that was in effect until 1

July 1, 2009, when the Code underwent major revisions. The

current version of Canon 3A(4), however, is substantially the

same as the former version quoted by SKF. 

2

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Dameron Hosp., No. 99-1275, 2000 WL 35619441, at *4 n.4 (E.D.

Cal. June 23, 2000); Carson v. Roper, No. 89-162, 1994 WL 62100,

at *5 (N.D. Cal. Feb. 11, 1994); Dayton Monetary Assocs. v.

Donaldson, Lufkin & Jenrette Secs. Corp., Nos. 91-250 et al.,

1992 WL 204374, at *8 n.8 (S.D.N.Y. Aug. 11, 1992); Gassett v.

Scully, No. 83-6240, 1985 WL 1020, at *1 (S.D.N.Y. May 2, 1985)

(“Petitioner . . . argues that the Court may not grant an

extension of time unless the party requesting the extension

serves a copy of that request on opposing parties. This argument

is simply without merit.”).

Some of these decisions, in fact, reject the very same

argument SKF makes here--that it was improper to grant one

party’s request for an extension of time without first notifying

the others. See Carson, 1994 WL 62100, at *5; Gassett, 1985 WL

1020, at *1. There is one difference, though: in those cases,

the argument was being made by a pro se prisoner, while in this

case it is being made by experienced litigators.

Second, the local rules of this court authorize the sealing

of filings so that they may be reviewed only by the party who

filed them, L.R. 83.11(b)(2), as well as the sealing of motions

to seal themselves, L.R. 83.11(c) (“Any motion to seal, upon

specific request, may also be sealed if it contains a discussion

of the confidential material.”). So there was nothing improper

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about sealing either the ex parte motion or the motion to seal

itself. It seems silly to have to explain that, if an ex parte

motion is to retain its ex parte character, it must be filed

under seal, and the motion for filing it under seal must not

itself be publicly filed or served upon opposing counsel. See

Fed. R. Civ. P. 5(a)(1)(D) (exempting ex parte motions from the

service requirement applicable to all other written motions).

It is clear, then, that the court’s ex parte treatment of

the plaintiffs’ motion to extend time and their motion to seal

that filing was fully consistent with the Federal Rules of Civil

Procedure and this court’s local rules and therefore did not deny

SKF its constitutional right to due process or violate the code

of judicial conduct. Moreover, the rules aside, it borders on

the outrageous to argue that granting a litigant two additional

months to find counsel, after its former attorneys withdrew on

the eve of trial, could amount to such a serious transgression of

the opposing party’s rights or judicial ethical standards, even

if done ex parte.

In any event, because the positions SKF took in its motions

to reconsider and to unseal (neither of which cite a single case)

are so clearly foreclosed by the plain language of the rules,

this court is concerned that SKF’s attorneys filed them in

violation of Rule 11(b)(2), which requires that “legal

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contentions are warranted by existing law or by a nonfrivolous

argument for extending, modifying, or reversing existing law.” 

Although the court will, at this juncture, stop short of

requiring SKF’s counsel of record to show cause why filing the

motions to reconsider and to unseal did not violate Rule 11(b), 

see Fed. R. Civ. P. 11(c)(3), the court is actively considering

the imposition of sanctions up to and including the revocation of

Philadelphia counsel’s pro hac vice status. See L.R. 83.2(b). 

In the meantime, SKF’s motion to unseal and its motion to 2

reconsider are DENIED. 3

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: April 19, 2010

cc: Roxana Marchosky, Esq.

David Richman, Esq.

Gregory A. Moffett, Esq.

Matthew R. Williams, Esq.

Peter G. Callaghan, Esq.

Alexander J. Walker, Esq.

James W. Donchess, pro se

Document no. 160. 2

Document no. 161. 3

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