On June 28, 2010 the Eastern District of New York added information regarding electronic filing of motions for leave to file under seal, and ex parte motions. Details can be found here.
Learn more from the Eastern District of New York SmartRules Guides.
Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to ex parte motions in the New York Supreme Courts. For more detailed information, including local rules, on ex parte motions in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Ex Parte Motion Guide for the court where your action is pending.
Timing:
The New York Civil Practice Laws and Rules provide that an ex parte motion in a Supreme Court case may be made without notice at any motion term or to any Justice in any court in any county in the state. CPLR 2212(b). According to this rule, Supreme Court justices can provide ex parte relief on any matter, at any time, anywhere. The Uniform Rules limit this power by providing that judges must refer ex parte applications to the judge assigned to a particular matter, unless the issue requires immediate determination. Uniform R. 202.07(e).
Ex Parte Motion Rules:
In most circumstances, all motions, including ex parte motions, must be made before the judge assigned to the matter. See Uniform R. 202.8(a).
According to custom and practice in New York, all motions must be made on notice, unless a statute or rule explicitly authorizes an ex parte motion. For example, there is an explicit ex parte statutory procedure for orders to show cause. Other common statutory grants of authority for ex parte motions include:
Ex parte motions are permitted to seek the assistance of the court in devising a manner of service when standard methods fail. CPLR 308(5); CPLR 311(b).
The court may grant an extension of up to five (5) days time to commence the action. CPLR 304(a).
Attachment orders may be made and granted without notice. CPLR 6211.
If the required showing is made, a restraining order can be granted without notice to the opposing party. CPLR 6313.
All ex parte motions, including orders to show cause, must be accompanied by an affidavit stating the results of any prior motion for similar relief and specifying any new facts not previously shown that justify a new motion. CPLR 2217(b).
If the matter has not been assigned to an IAS judge, an ex parte motion (like any other motion) must be accompanied by a Request For Judicial Intervention (“RJI”). The moving party will receive an index number for the case from the court on filing the RJI form and must give written notice of the index number to all parties. The court will then assign the case to a judge as soon as practicable. See Uniform R. 202.8(b).
If the matter is too urgent to await judicial assignment, the filing party should inquire at the Clerk’s office for the procedure to bring his ex parte motion before a “standby” judge.
The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein. CPLR 2214(d).
An order to show cause against a state body or officers must be served in addition to service upon the defendant or respondent state body or officers upon the attorney general by delivery to an assistant attorney general at an office of the attorney general in the county in which venue of the action is designated or if there is no office of the attorney general in such county, at the office of the attorney general nearest such county. CPLR 2214(d).
In ruling on an order to show cause, the judicial officer will usually determine the time and place of its return, who will serve the order, by what method the order will be served, and the court can include a provision staying or enjoining certain acts, i.e., a temporary restraining order. A signed order to show cause is returned to the party who presented it for service according to its terms. When served, it becomes equivalent to a notice of motion.
An order on an ex parte motion is not appealable. CPLR 5701(a)(2).
Use this At A Glance Guide to learn the statewide rules of civil procedure, (the California Code of Civil Procedure and California Rules of Court) applicable to ex parte motions in the California Superior Courts. For more detailed information, including local rules, on ex parte motions in a specific California Superior Court, please see the SmartRules California Ex Parte Motion Guide for the court where your action is pending.
Timing:
A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice. CRC 3.1203(a) (renumbered eff 1/1/07). When notice of an ex parte application is given, the person giving notice must state with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application, and must attempt to determine whether the opposing party will appear to oppose the application. CRC 3.1204(a) (renumbered eff 1/1/07).
Ex Parte Motion Rules:
The court may grant ex parte relief without notice to the opposing party. An ex parte application presented without notice must be accompanied by a declaration that, for reasons specified, the applicant should not be required to inform the opposing party. CRC 3.1204(b)(3) (renumbered eff 1/1/07).
An ex parte application must state the name, address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of the party if known to the applicant. CRC 3.1202(a) (renumbered eff 1/1/07).
An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. CRC 3.1202(c) (renumbered eff 1/1/07).
When notice of an ex parte application is given, the person giving notice must:
(1) State with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application; and
(2) Attempt to determine whether the opposing party will appear to oppose the application. CRC 3.1204(a).
An ex parte application for an order must be accompanied by an affidavit or a declaration showing: (1) that the applicant informed the opposing party when and where the application would be made no later than 10:00 a.m. on the court day before the application was made and the notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected; or (2) that the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or (3) that, for reasons specified, the applicant should not be required to inform the opposing party. CRC 3.1204(b) (renumbered and amended eff 1/1/07).
If notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain the exceptional circumstances that justify the shorter notice, or, in unlawful detainer proceedings, when the notice given is reasonable. CRC 3.1204(c) (renumbered eff 1/1/07).
If an ex parte application has been made to the court and has been refused in whole or in part, any subsequent application of the same character or for the same relief, although made upon an alleged different state of facts, must include a full disclosure of any previous applications and the court’s actions. CRC 3.1202(b) (renumbered eff 1/1/07).
A request for ex parte relief must be in writing and include all of the following:
(1) An application containing the case caption and stating the relief requested;
(2) A declaration in support of the application making the required factual showing;
(3) A declaration based on personal knowledge of the notice given;
(4) A memorandum; and
(5) A proposed order.
CRC 3.1201 (renumbered and amended eff 1/1/07).
Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless such service has been made. CRC 3.1206 (renumbered eff 1/1/07).
An ex parte application will be considered without a personal appearance of the applicant in the following cases only: (1) Applications to file a memorandum of points and authorities in excess of the applicable page limit; (2) Applications for extensions of time to serve pleadings; (3) Setting of hearing dates on alternative writs and orders to show cause; and (4) Stipulations by the parties or other orders of the court. CRC 3.1207 (amended and renumbered eff 1/1/08).
Use this At A Glance Guide to learn the Federal Rules of Civil Procedure that govern ex parte motions in the United States District Courts. For more detailed information, including local rules, on ex parte motions in a specific United States District Court, please see the SmartRules United States District Court Ex Parte Motion Guide for the court where your action is pending.
Ex Parte Motion Rules:
There are no provisions of the Federal Rules of Civil Procedure governing ex parte papers. Customarily, ex parte papers include: (1) the ex parte application, providing a short statement of the relief sought and the grounds on which the application is based; (2) a memorandum of points and authorities supporting the application, including any evidentiary declarations; (3) a declaration regarding notice to the opposing party; and (4) a proposed order.
A motion must be made in writing, (unless made during a hearing or at trial), and must set forth with particularity the grounds on which it is brought, and the relief or order sought. FRCP 7(b)(1).
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name – or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. FRCP 11(a).
There are no provisions of the Federal Rules of Civil Procedure that govern filing and service of ex parte papers. Customarily, ex parte papers are filed with the Court and personally served on opposing parties the same day. Many judges have special rules and procedures regarding ex parte applications.