Halliday et al v. Spjute et al

Filing 366

ORDER DENYING 360 Motion for Reconsideration signed by District Judge Anthony W. Ishii on 11/20/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL IOANE, et al,

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Plaintiffs

CASE NO. 1:07-CV-0620 AWI EPG
ORDER RE: MOTION FOR
RECONSIDERATION

v.
KENT SPJUTE, et al,
(Doc. 360)
Defendants

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I. History
The current Plaintiffs are Michael Ioane Sr. and Shelly Ioane who lived at 1521 Fruitland

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Ave., Atwater, CA. They are a married couple involved in tax disputes with United States.

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Current Defendants Kent Spjute, Jean Nole, Jeff Hodges, Brian Applegate, and Michelle Casarez

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are Internal Revenue Service agents. Based on the affidavit of Kent Spjute, the United States was

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able to obtain a search warrant for Plaintiffs’ residence. The search was carried out by Defendants

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on June 8, 2006. Their actions in executing the search warrant forms the basis for the claims in

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this suit. The only active causes of action left in this suit are Fourth Amendment excessive force

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and violation of bodily privacy claims. Plaintiffs allege that they have suffered and continue to

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suffer emotional distress.

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This case was originally filed in 2007 but was stayed in 2008 pending resolution of a

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related criminal case. The stay was lifted in 2012. Discovery was undertaken in 2014 with a trial

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to be held in December of that year. Unfortunately, the last two trial dates have been vacated due

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to the court’s schedule. Plaintiffs made a motion for non-expert discovery to be reopened. Doc.

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219. Magistrate Judge Gary Austin denied that motion. Doc. 313. Plaintiffs have now made a

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motion for reconsideration. Doc. 360. Defendants oppose the motion. Doc. 362. Plaintiffs have

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filed a reply. Doc. 364.

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II. Legal Standards

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Federal Rules of Civil Procedure 72(a) gives Magistrate Judges the authority to hear and

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decide nondispositive pre-trial matters. Fed. R. Civ. Proc. 72(a). Title 28 U.S.C. §636(b)(1)(A)

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states “A judge of the court may reconsider any pretrial matter under this subparagraph(A) where

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it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” The

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court must give deference to a nondispositive order entered by a magistrate judge unless the order

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is “clearly erroneous or contrary to law.” Grimes v. City and County of San Francisco, 951 F. 2d

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236, 241 (9th Cir. 1991). Additionally, “Reconsideration is appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law. There may also be

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other, highly unusual, circumstances warranting reconsideration.” School Dist. No. 1J Multnomah

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County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), citations omitted.

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III. Analysis
Judge Austin denied Shelly Ioane’s request to extend the non-expert discovery deadline.

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Doc. 313. Michael Ioane now seeks reconsideration of that order to depose Defendants Jean Nole,

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Brian Applegate, and Jeff Hodges. Doc. 360, 1:25-28. He explains that during the discovery

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window “Plaintiffs neglected to serve deposition notices having been preoccupied with

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preliminary interrogatories and document requests.” Doc. 360, 10:10-13. Defendants point out

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that the depositions are a new request that was not presented to Judge Austin as Plaintiffs did not

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initially describe what additional discovery they were seeking. Doc. 362, 4:7-9.

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Michael Ioane argues that the initial period for discovery was unreasonably short. Doc.

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360, 8:11-24. The scheduling conference order was issued December 5, 2013 and set the non-

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expert discovery deadline as April 4, 2014 with trial set for December 16, 2014. Doc. 174.

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Michael Ioane objects that “Plaintiffs were not aware of the rule that all discovery had to be served
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more than 30 days before the cutoff” which effectively only gave them four months for discovery.

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Doc. 360, 10:6-8. While Plaintiffs are pro se, they “must follow the same rules of procedure that

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govern other litigants.” Jacobs v. Woodford, 592 Fed. Appx. 618, 618 (9th Cir. 2015), quoting

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). It is the standard rule that “discovery requests

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must be served at least 30 days prior to the discovery deadline.” Miller v. Rufion, 2010 WL

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4137278, *1 (E.D. Cal. Oct. 19, 2010). Plaintiffs are held to that rule. Moreover, this is not a

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factually complicated case. Four or five months is a reasonable period for discovery for this type

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of claim. See e.g. Bonner v. Smyre, 2015 U.S. Dist. LEXIS 9202, *5-6 (S.D. Ga. Jan. 27, 2015)

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(four months); Hardee v. City of New York, 2014 U.S. Dist. LEXIS 113024, *9 (S.D.N.Y. Aug.

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14, 2014) (five months); Njos v. Argueta, 2014 U.S. Dist. LEXIS 56713, *13 (M.D. Pa. Apr. 23,

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2014) (four months); Giordano v. Murano-Nix, 2014 U.S. Dist. LEXIS 1861, *2-3 n.4 (E.D. Pa.

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Jan. 7, 2014) (four months); L.A., Tony Sisneros v. City of Albuquerque, 2013 U.S. Dist. LEXIS

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187686, *4-5 (D.N.M. Nov. 7, 2013) (five months); Macdonald v. Metro. Transit Sys., 2013 U.S.

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Dist. LEXIS 62184, *9 (S.D. Cal. Apr. 30, 2013) (four months).

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Michael Ioane also states “I have contacted outside counsel about taking on this case and

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doing discovery necessary for trial. Counsel is unwilling to come into the action with discovery

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closed. However, I have the agreement of counsel that if discovery is re-opened, he will take the

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depositions of the defendant and discuss with my wife and myself substitution into the case as trial

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counsel.” Doc. 360, 15:9-16. He has cited to some precedent that permitted reopening discovery

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when a pro se litigant found counsel to substitute into the case. See Draper v. Rosario, 2013 U.S.

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Dist. LEXIS 169493, *7 (E.D. Cal. Nov. 26, 2013) (“Generally, the arrival of new counsel does

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not entitle parties to conduct additional discovery....This rule is sometimes relaxed when, as here,

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pro bono counsel have agreed to represent pro se plaintiffs after the discovery deadlines have

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closed”); Calloway v. Scribner, 2014 U.S. Dist. LEXIS 42354, *9-10 (E.D. Cal. Mar. 27, 2014).

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Those cases are distinguishable as Plaintiffs in this case have not secured counsel to represent

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them. They have discussed the case with potential counsel but have no firm commitment for

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representation.

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Michael Ioane also argues that newly discovered evidence justifies additional discovery:
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“after the discovery cutoff, the Defendants provided declarations in support of a motion for

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summary judgment which provided new facts. Also, just recently, long after the discovery cutoff,

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Defendants finally provided Michael Ioane with a copy of a video of the search on dvd which

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elicited new information.” Doc. 360, 7:9-15. Michael Ioane does not explain what specific new

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information was provided which would justify allowing late depositions of Defendants. He does

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not describe how this was information that he was unable to explore during the discovery window.

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IV. Order
Plaintiffs’ motion for reconsideration is DENIED.

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IT IS SO ORDERED.
Dated: November 20, 2015
SENIOR DISTRICT JUDGE

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