Wishtoyo Foundation v. Los Angeles Coastkeeper et al

Filing 244

MINUTES (IN CHAMBERS): ORDER Granting Defendants' ex Parte Application to Hear Defendants' Motion for Judgment on the Pleadings Past the Motion Hearing Cutoff Date by Judge Gary A. Feess: Postponing resolution of the applicability of 40 C.F .R. § 122.28(b)(3)(iv) until trial risks wasting the Court's and the parties' resources on preparation for claims that may be rendered moot by Defendants' motion. The prejudice to Plaintiffs is minimal because a November 24, 2014 hearing date is only two weeks after the motion hearing cutoff date and because the motion addresses a purely legal argument. The Court therefore exercises its inherent authority to allow Defendants' motion for judgment on the pleadings to be heard on December 1, 2014 at 9:30 a.m. The ex parte application 219 is GRANTED. (smo)

LINK: 219
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-5600 GAF (MANx)

Title

Wishtoyo Foundation v. Magic Mountain LLC et al

Present: The Honorable

Date

October 30, 2014

GARY ALLEN FEESS

Stephen Montes Kerr
Deputy Clerk

None
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

In Chambers (No Proceedings Held)

ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION TO HEAR
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS PAST THE
MOTION HEARING CUTOFF DATE
On October 24, 2014, Defendants Magic Mountain LLC (“MMLLC”) and Six Flags
Theme Parks, Inc. (“SFINC”) filed an ex parte application for an order to hear Defendants’
Motion for Judgment on the Pleadings past the motion hearing cutoff date, currently set for
November 10, 2014, or, alternatively, to shorten time to hear the motion on November 10, 2014.
(Docket No. 219.) Plaintiffs opposed and Defendants replied on October 27. (Docket Nos. 222,
227.) The Court finds the matter appropriate for resolution without oral argument. Fed. R. Civ. P. 78;
Local Rule 7-15.
Defendants claim they “have recently become aware” of 40 C.F.R. § 122.28(b)(3)(iv), which
states:
When an individual NPDES permit is issued to an owner or operator
otherwise subject to a general NPDES permit, the applicability of the
general permit to the individual NPDES permittee is automatically
terminated on the effective date of the individual permit.

(Mem. at 1-2.) Based on this regulation, Defendants filed a motion for judgment on the
pleadings as to the seventh through tenth causes of action for alleged violations of the general
permit. (Docket No. 220.)
Defendants argue that ex parte relief is warranted because they “have never presented the
issue of this Regulation’s applicability before this Court.” (Mem. at 6-7, 10; Reply at 3.) To
support their argument that the motion is the result of excusable neglect, Defendants explain that
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LINK: 219
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-5600 GAF (MANx)

Date

Title

October 30, 2014

Wishtoyo Foundation v. Magic Mountain LLC et al

“the issue of coverage of the General Permit had become framed as a question of fact,” and they
only recently became aware of the regulation “[a]fter reassessing their legal strategy.” (Mem. at
9.) Defendants state that the prejudice to Plaintiffs is minimal because the motion involves a
purely legal issue that may streamline the proceedings. (Mem. at 6-8.)
Plaintiffs oppose the ex parte application on the grounds that Defendants have not shown
excusable neglect because the regulation was cited in the Complaint and presumably reviewed
by Defendants when they answered the Complaint. Compl. ¶ 27 (“NPDES Permits issued to
regulation the same or similar categories of point sources that discharge similar types of
pollutants, are known as ‘General Permits.’ 40 C.F.R. § 122.28.”). Plaintiffs also include a
lengthy footnote on the merits of the motion that challenges Defendants’ characterization of the
regulation as “dispositive.” (Opp. at 5, n.4.)
The Court is well aware that “Defendants have spent the better part of the last two years
filing motions seeking to dismiss the General Permit claims[.]” (Opp. at 4.) That Defendants
only recently “reassess[ed] their legal strategy” is not a basis for belatedly introducing new legal
arguments. The burden was clearly on Defendants to thoroughly research and present this
“dispositive” regulation to the Court within the deadlines set forth in the Scheduling Order.
Defendants’ failure to do so is inexcusable.
Nevertheless, it is undisputed that the applicability of 40 C.F.R. § 122.28(b)(3)(iv) to the
general permit claims has not been litigated in this case. The Court is now left in the untenable
position of having to enforce a regulatory scheme without being fully briefed on the controlling
law. Postponing resolution of the applicability of 40 C.F.R. § 122.28(b)(3)(iv) until trial risks
wasting the Court’s and the parties’ resources on preparation for claims that may be rendered
moot by Defendants’ motion. The prejudice to Plaintiffs is minimal because a November 24,
2014 hearing date is only two weeks after the motion hearing cutoff date and because the motion
addresses a purely legal argument. The Court therefore exercises its inherent authority to allow
Defendants’ motion for judgment on the pleadings to be heard on December 1, 2014 at 9:30
a.m. The ex parte application is GRANTED.
IT IS SO ORDERED.

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