Case 2:22-cv-02333-MEMF-AS Document 118 Filed 02/02/24 Page 1 of 6 Page ID #:685
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`PERKINS COIE LLP
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`Alisha C. Burgin, Bar No. 286269
`ABurgin@perkinscoie.com
`1888 Century Park East, Suite 1700
`Los Angeles, California 90067-1721
`Telephone: +1.310.788.9900
`Facsimile: +1.310.788.3399
`
`Torryn T. Rodgers, Bar No. 319126
`TRodgers@perkinscoie.com
`505 Howard Street, Suite 1000
`San Francisco, California 94105
`Telephone: +1.415.344.7000
`Facsimile: +1.415.344.7050
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`Attorneys for Defendants
`GOOGLE LLC
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`SHAHERYAR KHAN,
`Plaintiff,
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`v.
`ADAM KRAEMER; KENT SETON;
`EDWARD CHARLES
`FOUNDATION, THRONE; GOOGLE;
`APPLE, ET AL.,
`Defendants.
`
` Case No. 2:22-CV-02333-MEMF-AS
`DEFENDANT GOOGLE LLC’S
`OPPOSITION TO PLAINTIFF
`SHAHERYAR KHAN’S EX PARTE
`MOTION FOR AN EXTENSION OF
`TIME TO FILE AN AMENDED
`COMPLAINT
`Date: February 12, 2024
`Time: 10:00 a.m.
`Place: Courtroom 8B
`Judge: Hon. Maame Ewusi-Mensah
`Frimpong
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`GOOGLE’S OPPO’N TO PL’S MOT. FOR EXT. | NO. 2:22-CV-02333-MEMF-AS
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`Case 2:22-cv-02333-MEMF-AS Document 118 Filed 02/02/24 Page 2 of 6 Page ID #:686
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`I.
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`INTRODUCTION
`Defendant Google, LLC (“Google”) opposes Plaintiff Shaheryar Khan’s
`(“Plaintiff”) Ex Parte Motion for an Extension of Time to File an Amended
`Complaint (the “Motion”). See ECF No. 115.
`II. ARGUMENT
`A.
`Plaintiff has again failed to comply with this Court’s clear
`directive.
`In granting Plaintiff’s last ex parte motion, the Court specifically ordered that
`if Khan were to seek another extension to file his amended complaint, “he must file
`such a request by January 29, 2024,” or the Court will “dismiss[] this action for
`lack of prosecution.” ECF No. 112 (“Previous Order”) at 2. Instead, Plaintiff’s
`Motion comes a day late and a dollar short. Plaintiff’s (repeated) failure to abide by
`this Court’s orders is grounds for denial of his Motion and dismissal of the lawsuit
`in its entirety. See also ECF No. 37 (Google’s pending motion to dismiss).
`B.
`Ex parte relief is not warranted where Plaintiff has failed to
`establish he is “without fault in creating the crisis” for which he
`now seeks relief.
`“[T]he opportunities for legitimate ex parte applications are extremely
`limited.” In re Intermagnetics Am. Inc., 101 B.R. 191, 193 (C.D. Cal. 1989); see
`also Standing Order at Sec. XI (ex parte applications are reserved “solely for
`extraordinary relief.”). This is because “[e]x parte applications throw the system out
`of whack” and “impose an unnecessary administrative burden on the court and an
`unnecessary adversarial burden on opposing counsel.” In re Intermagnetics, 101
`B.R. at 193. In other words, ex parte applications seek to allow the applicant to “go
`to the head of the line in front of all other litigants and receive special treatment.”
`Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal.
`1995). Understandably, therefore, applicants must clear a high bar to obtain such
`“special treatment”:
`First, the evidence must show that the moving party’s cause will be
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`GOOGLE’S OPPO’N TO PL’S MOT. FOR EXT. | NO. 2:22-CV-02333-MEMF-AS
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`Case 2:22-cv-02333-MEMF-AS Document 118 Filed 02/02/24 Page 3 of 6 Page ID #:687
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`irreparably prejudiced if the underlying motion is heard according to regular
`noticed motion procedures. Second, it must be established that the moving
`party is without fault in creating the crisis that requires ex parte relief, or
`that the crisis occurred as a result of excusable neglect.
`Id. (emphasis added). Plaintiff does not clear that bar. As the Court has continually
`acknowledged in its previous orders granting Plaintiff’s previous motions seeking
`ex parte relief on substantially similar grounds, the second requirement, at
`minimum, “is of concern.” See ECF No. 104 at 4; Previous Order at 2. Indeed,
`“Khan has repeatedly promised the Court that he will file his first amended
`complaint, but has failed to do so repeatedly, continually claiming that various
`counsel must review the document first or asserting his illness as a reason for late
`filing.” Previous Order at 2. It is clear from a cursory review of the docket and
`Plaintiff’s eighth such ex parte motion that Plaintiff has been relying on a series of
`crises of his own creation in order to further delay prosecution of his case.1
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`For example, Plaintiff has had plenty of time to find counsel and prepare an
`amended complaint but has deferred doing so at every turn. That is why he has
`(again) missed the Court-imposed deadline, not COVID-19, not other
`unsubstantiated accusations of “tampering.” To recount, Plaintiff first sought leave
`to amend his complaint—which has been pending for almost two years—on
`January 12, 2023. ECF No. 33. In acknowledging that even this request was
`untimely, the Court nonetheless granted Plaintiff’s request on March 31, 2023 in
`part because Plaintiff sought to amend “with the aid of retained counsel.” ECF No.
`66 at 1–2 (“Khan’s request to amend was filed outside of the 21-day window to
`amend as of right.”). It has now been eighteen months, and Plaintiff is still
`allegedly on the cusp of obtaining counsel but has not yet done so. Compare ECF
`No. 17 (referring to an attempt to obtain counsel in bankruptcy proceeding on July
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`1 Indeed, the federal rules contemplate amendment as of right and without leave of
`court only during the 21 days following the filing of a Rule 12(b) motion. Fed. R.
`Civ. Pr. 15(a)(1)(B)–(2). Google filed its Rule 12(b)(6) motion over one year ago,
`on January 30, 2023. ECF No. 37.
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`GOOGLE’S OPPO’N TO PL’S MOT. FOR EXT. | NO. 2:22-CV-02333-MEMF-AS
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`Case 2:22-cv-02333-MEMF-AS Document 118 Filed 02/02/24 Page 4 of 6 Page ID #:688
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`22, 2022), with ECF No. 115 (“I am meeting with council and awaiting retainers
`due . . .”). Plaintiff has not given any indication that this will change, nor has he
`explained his apparent inability to retain counsel. More still, it is perplexing that
`Plaintiff was apparently able to draft and file this Motion while suffering from the
`consequences of an adverse reaction to COVID-19, but has simultaneously been
`unable to work on his amended complaint or retain counsel. ECF No. 115 at 3.
`To be clear, Plaintiff’s series of personal health issues and other challenges
`over the course of this litigation are very unfortunate. But those challenges do not
`excuse his obligations to comply with multiple court orders directing Plaintiff to
`abide by certain deadlines or face dismissal for lack of prosecution. Previous Order
`at 2. Indeed, Plaintiff’s challenges have become a repeat pattern of excuses for
`repeated delay and inaction. For example:
` In March 2023, Plaintiff sought a continuance of Google’s motion to
`dismiss due to “theft of materials needed for the responses” and a
`“very serious medical matter” suffered in January 2023 (ECF No. 51);
` In April 2023, Plaintiff sought an extension to amend his complaint
`due to “contraction of the COVID 19 disease” (ECF No. 67);
` In May 2023, Plaintiff sought a further extension to amend his
`complaint and retain counsel because of “extended COVID and cancer
`diagnosis” and to allow him time to “resolve [his] legal and estate
`matters” (ECF No. 74);
` In June 2023, Plaintiff sought further extension for the same reasons
`(ECF No. 80);
` Later that same month, Plaintiff sought further time to amend his
`complaint and retain counsel due to “severe pain” and “required rest”
`as he awaited various medical test results, and because of “criminal
`and fraudulent activity in [his] legal cases” (ECF No. 85);
` In August 2023, Plaintiff sought a further extension of time due to a
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`Case 2:22-cv-02333-MEMF-AS Document 118 Filed 02/02/24 Page 5 of 6 Page ID #:689
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`continued illness and for counsel to appear and “adjust” a supposedly
`drafted amended complaint before filing (ECF No. 95);
` In October 2023, Plaintiff sought a further extension of time to amend
`his complaint and seal documents due to a continued illness,
`forthcoming intervention of “authorities”, and prolonged unavailability
`of his yet-to-be-retained counsel (ECF No. 99); and
` In December 2023, Plaintiff sought another extension to amend his
`complaint “[d]ue to confusion with the clerks office” regarding the
`status of sealed documents, and because Plaintiff’s “attorney missed
`the meeting [he] had set” (ECF No. 107).
`It remains unclear if the challenges that have befallen Plaintiff to date will
`persist, and what, if anything, Plaintiff has done to mitigate their impacts.
`In light of the arguments above, Plaintiff’s demand for priority consideration
`is undeserved. See In re Intermagnetics, 101 B.R. at 191 (acknowledging that ex
`parte applications “seldom deserve[]” the priority consideration which they
`demand).
`C. Google is prejudiced.
`Ex parte applications impose “an unnecessary adversarial burden on
`opposing counsel who are required to make a hurried response under pressure,
`usually for no good reason.” In re Intermagnetics, 101 B.R. at 193. As here,
`Plaintiff has shown “no good reason” for such extraordinary relief. Google’s
`motion to dismiss (ECF No. 37) has been pending for over a year, the Court has
`already generously granted seven ex parte extensions to file an amended complaint,
`and there is no indication that Plaintiff is any closer to obtaining counsel or
`amending his complaint than he was a year ago. In the meantime, Google continues
`to expend time and resources litigating this case. More still, it is not even clear how
`much additional time Plaintiff is requesting through his Motion. See generally ECF
`No. 115. Such an indefinite extension only further prejudices Google and its ability
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`GOOGLE’S OPPO’N TO PL’S MOT. FOR EXT. | NO. 2:22-CV-02333-MEMF-AS
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`Case 2:22-cv-02333-MEMF-AS Document 118 Filed 02/02/24 Page 6 of 6 Page ID #:690
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`to defend itself in this already meritless litigation.
`III. CONCLUSION
`For the foregoing reasons, Google respectfully requests that the Court deny
`Plaintiff’s eighth Ex Parte Motion for an Extension of Time to File an Amended
`Complaint.
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`Dated: February 2, 2024
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`PERKINS COIE LLP
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`By:
`/s/Alisha C. Burgin
`Alisha C. Burgin
`Torryn T. Rodgers
`Attorneys for Defendants
`GOOGLE LLC
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`GOOGLE’S OPPO’N TO PL’S MOT. FOR EXT. | NO. 2:22-CV-02333-MEMF-AS
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