Halliday et al v. Spjute et al

Filing 405

ORDER RE: DEFENDANTS' MOTION TO BIFURCATE, OR IN THE ALTERNATIVE, TO SEVER, signed by District Judge Anthony W. Ishii on 7/19/2016. (Kusamura, W)

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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
v.

CASE NO. 1:07-CV-0620 AWI EPG
ORDER RE: DEFENDANTS’ MOTION
TO BIFURCATE, OR IN THE
ALTERNATIVE, TO SEVER

KENT SPJUTE, et al,

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Defendants

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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 the United States.

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Kent Spjute, Jean Noll, Jeff Hodges, Brian Applegate, and Michelle Casarez are Internal Revenue

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Service agents (“Federal 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 to collect records related to taxation. The

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search was carried out by the Federal Agents on June 8, 2006. This search forms the basis for the

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claims in this suit.

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Michael Ioane Sr. and Shelly Ioane, together with former plaintiffs Glen Halliday, Ashley

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Ioane, and Michael Ioane Jr., filed suit against the Federal Agents and the United States on April

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20, 2007 and a First Amended Complaint shortly thereafter. Docs. 1 and 39. The case was stayed

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pending resolution of a criminal case against Michael Ioane Sr. for tax fraud conspiracy, based in

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part on the evidence seized during the search. Crim. Case. No. 09-0142 LJO. Michael Ioane Sr.

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was convicted on October 3, 2011 after a jury trial. He appealed the conviction, but it was

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affirmed. Michael Ioane Sr. has filed a habeas corpus petition under 28 U.S.C. § 2255. In the

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meantime, the stay was lifted in this case. Doc. 107.

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Plaintiffs Michael Ioane Sr. and Shelly Ioane originally pursued several causes of action

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against the United States and the Federal Agents. Through several rounds of motions, the only

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claims left are Fourth Amendment excessive force claims against Defendants Hodge and

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Applegate and Fourth Amendment violation of bodily privacy claims against Defendant Noll.

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Specifically, Plaintiffs allege that Defendants Hodge and Applegate pointed guns at the heads of

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Plaintiffs and that Defendant Noll insisted upon entering the restroom with Plaintiff Shelly Ioane

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to witness her relieve herself.

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In the last summary judgment motion, Defendant Noll sought qualified immunity for her
actions in monitoring Plaintiff Shelly Ioane. Doc. 369. Qualified immunity was denied. Doc. 384.

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In response, Defendant Noll filed a notice of appeal to the Ninth Circuit. Doc. 394. Defendants

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then filed a motion to bifurcate the claims against Defendant Noll from the claims against

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Defendants Hodge and Applegate, or in the alternative, to sever the claims. Doc. 398. Plaintiffs

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oppose the motion. Doc. 401.

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II. Legal Standard
“For convenience, to avoid prejudice, or to expedite and economize, the court may order a

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separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party

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claims.” Fed. Rule Civ. Proc. 42(b). This rule “confers broad discretion upon the district court to

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bifurcate a trial, thereby deferring costly and possibly unnecessary proceedings pending resolution

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of potentially dispositive preliminary issues.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088

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(9th Cir. 2002). “Courts may consider several factors in determining whether bifurcation is

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appropriate, including whether the issues are clearly separable, and whether bifurcation would

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increase convenience and judicial economy, reduce the risk of jury confusion, and avoid prejudice

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to the parties. The party requesting bifurcation has the burden of proving that bifurcation is

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justified given the particular circumstances.” Aoki v. Gilbert, 2015 U.S. Dist. LEXIS 131828, *14

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(E.D. Cal. Sept. 28, 2015), citations omitted.

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Federal Rules of Civil Procedure 21 allows a court to “sever any claim against a party.”
Generally, “[a] court considers the same factors relevant to severance under Rule 21 in deciding
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whether to bifurcate under Rule 42(b).” Anticancer, Inc. v. Pfizer Inc., 2012 U.S. Dist. LEXIS

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40979, *4 (S.D. Cal. Mar. 26, 2012), citing Morris v. Northrop Grumman Corp., 37 F. Supp. 2d

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556, 580 (E.D.N.Y. 1999). “The difference between severance under Rule 21 and separation

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under Rule 42(b) is that severance results in separate and independent actions with separate final

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judgments, whereas separation does not.” Brophy v. Day & Zimmermann Hawthorne Corp., 2012

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U.S. Dist. LEXIS 33955, *4 n.2 (D. Nev. 2012), citing 4 James Wm. Moore et al., Moore’s

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Federal Practice § 21.06[1] (3d ed. 2011).

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III. Discussion
The significance of bifurcation in this case is that doing so would allow the excessive force

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claims to go to trial on the currently scheduled trial date of September 7, 2016. Defendant Noll

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has appealed as a matter of right the denial of qualified immunity. That appeal prevents the whole

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case from moving forward to trial at this time.

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In opposition to this motion, Plaintiffs reject this contention. They argue that Defendants’

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appeal on the question of qualified immunity is based on issues of fact rather than issues of law

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which render it unfit for interlocutory appeal. Doc. 401, at 2. The Ninth Circuit has stated “we

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have jurisdiction over an interlocutory appeal from the denial of qualified immunity where the

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appeal focuses on whether the defendants violated a clearly established law given the undisputed

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facts, while we do not have jurisdiction over an interlocutory appeal that focuses on whether there

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is a genuine dispute about the underlying facts.” Knox v. Southwest Airlines, 124 F.3d 1103, 1107

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(9th Cir. 1997). Plaintiffs assert that the appeal is frivolous and should be subject to the Chuman

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rule: “Should the district court find that the defendants’ claim of qualified immunity is frivolous or

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has been waived, the district court may certify, in writing, that defendants have forfeited their right

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to pretrial appeal, and may proceed with trial. In the absence of such certification, the district court

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is automatically divested of jurisdiction to proceed with trial pending appeal.” Chuman v. Wright,

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960 F.2d 104, 105 (9th Cir. 1992). Thus, Plaintiffs assert that there is no need to bifurcate as the

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all the claims in this case may proceed to trial on September 7, 2016.

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Defendants assert that “[t]he Noll appeal is not frivolous and is not based on insufficiency
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of evidence or disputed facts.....For purposes of this appeal only, defendant Noll accepts as true all

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of the facts alleged by Shelly Ioane in the second amended complaint and in the portions of her

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deposition attached to the motion for summary judgment. The only issues on appeal will be

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whether those facts, as a matter of law, (1) constituted a violation of a constitutional right to bodily

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privacy and (2) violated law that was sufficiently clearly established to put a reasonable official on

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notice that the conduct complained of violated such a constitutional right.” Doc. 404, 3:1-20. The

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appeal fits within what is permitted, and the law is not so clear cut as to render it frivolous. Based

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on the representations of the parties, there is no basis for finding that this court retains jurisdiction

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over the claims against Defendant Noll nor is there a basis for invoking Chuman certification.

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As an initial matter, Plaintiffs assert that this issue has already been ruled upon by the

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court. Plaintiffs note that Defendants have requested bifurcation in two prior motions, both of

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which were denied. However, the prior motions involved requests to phase the liability and

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damages portions of the trial. See Docs. 284 and 372. Defendants had never asked to separate the

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claim against Defendants Hodge and Applegate (excessive force) from the claim against

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Defendant Noll (violation of bodily privacy). The prior orders denying the requests to bifurcate do

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not address the issue at bar. Docs. 312 and 379. The relevant factors, “whether the issues are

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clearly separable, and whether bifurcation would increase convenience and judicial economy,

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reduce the risk of jury confusion, and avoid prejudice to the parties” (Aoki v. Gilbert, 2015 U.S.

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Dist. LEXIS 131828, *14 (E.D. Cal. Sept. 28, 2015)), have never been examined in this case.

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A. Separability of Claims

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The excessive force claims arise from allegations that Defendants Hodge and Applegate

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pointed their firearms at Plaintiffs in an unreasonable manner when they first entered Plaintiffs’

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residence to execute the search warrant. The violation of bodily privacy claim arises from a

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separate set of actions by Defendant Noll in monitoring Plaintiff Shelly Ioane in the bathroom a

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significant while later. The warrant itself is not being challenged as part of this suit. While they

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share general background facts (the warrant and reason the Federal Agents were at Plaintiffs’

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residence) the specific facts in dispute are different for the two sets of claims. The claims appear
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to be readily separable.

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B. Convenience and Judicial Economy
As a general rule, holding multiple trials when claims could be consolidated in one trial is

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not conducive to judicial economy. See Thomas v. Wilber, 2015 U.S. Dist. LEXIS 100549, *6

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(E.D. Cal. July 31, 2015) (“it is not convenient, expeditious, or economical to conduct two jury

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trials on three claims arising from two incidents, none of which is legally or factually complex”);

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Knight v. City of Sacramento Police Dep’t, 2014 U.S. Dist. LEXIS 65235, *9 (E.D. Cal. May 9,

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2014) (“the interest of judicial economy cuts strongly in favor of holding a joint trial: holding nine

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separate trials would not only be substantially burdensome on the Court’s calendar, but would also

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likely result in the repeated presentation of identical evidence against Defendant City at each

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trial”). Judicial economy in bifurcation is achieved when an earlier trial deals with a dispositive

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matter which may moot the necessity of a later trial. See, e.g. Drennan v. Md. Cas. Co., 366 F.

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Supp. 2d 1002, 1007 (D. Nev. 2005) (“Bifurcation is particularly appropriate when resolution of a

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single claim or issue could be dispositive of the entire case”); Atencio v. Arpaio, 2013 U.S. Dist.

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LEXIS 137783, *11-12 (D. Ariz. Sept. 24, 2013). Alternatively, extreme length may also justify

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separate trials. See United States v. Baker, 10 F.3d 1374, 1389 (9th Cir. 1993) (in a case involving

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24 initial defendants in a 44 count indictment covering an 11 year period of criminal activity

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which ultimately culminated in a 16 month trial, the court stated “Where trials of this magnitude

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are involved, judicial economy will often be better served by severance”). Neither of these

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situations arises in this case. Bifurcation would not serve judicial economy.

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C. Risk of Jury Confusion
Defendants assert “there is a significant risk of jury confusion if the excessive force claim

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is tried with the bodily privacy claim because: the jury may confuse the evidence and the law on

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these two distinct and separate claims.” Doc. 398-1, 4:9-11. Though excessive force and bodily

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privacy are different claims, there is no special risk that a jury would confuse the law between

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them. See Kimbro v. Miranda, 2015 U.S. Dist. LEXIS 157412, *7-8 (E.D. Cal. Nov. 20, 2015) (in
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a Section 1983 case based on denial of medication and excessive force against two distinct sets of

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defendants, the court stated “Given that Plaintiff’s remaining claims arising from two incidents are

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neither legally nor factually complex, the Court finds that any risk of prejudice due to jury

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confusion or conflation of issues is purely speculative. Further, any risk of confusion or conflation

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is readily ameliorated through jury instructions and separate verdict forms”); cf. Brophy v. Day &

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Zimmermann Hawthorne Corp., 2012 U.S. Dist. LEXIS 33955, *6-7 (D. Nev. Mar. 14, 2012) (no

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juror confusion when asked to consider different kinds of employment discrimination, namely

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race, gender, and pregnancy).

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D. Prejudice
Ultimately, the main argument presented by Defendants is that bifurcation “is necessary to

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avoid prejudice against Defendants Hodge and Applegate by any further delay in the litigation.”

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Doc. 398-1, 7:16-18. “[P]rejudice...may simply amount to unfair delay of the final disposition of

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the matter.” Aoki v. Gilbert, 2015 U.S. Dist. LEXIS 131828, *19 (E.D. Cal. Sept. 28, 2015),

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quoting Willemijn HoudstermaatschaapijBV v. Apollo Computer Inc., 707 F. Supp. 1429, 1435

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(D. Del. 1989). As disputed events recede into the distant past, prejudice also arises from the

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difficulty of presenting all percipient witnesses. See Citizens Utilities Co. v. American Tel. & Tel.

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Co., 595 F.2d 1171, 1174 (9th Cir. 1979) (prejudice in delay where case was16 years old and

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dealing with events that took place 25-30 years ago as “Numerous witnesses have died; memories

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have faded”); Nolan v. City of Los Angeles, 2014 U.S. Dist. LEXIS 2256, *23 (C.D. Cal. Jan. 28,

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2014) (“There is little doubt that the requested continuance will prejudice the City. The case is

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already very old, and involved events that occurred between 8 and 13 years ago”). Plaintiffs do

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point out that Defendant Noll is the cause of the delay in this circumstance. Doc. 401, at 4.

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However, given that this case deals with events that took place a decade ago, the prejudice of

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delay must be given significant weight regardless of its source.

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Though there is no gain in judicial efficiency and no special risk of jury confusion, the

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prejudice of delay together with the clear separability of the claims justify bifurcating this case to

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allow the excessive force claims to move forward to trial.
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IV. Order

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Defendants’ motion is GRANTED.

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The excessive force claims against Defendants Hodges and Applegate and the violation of

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bodily privacy claim against Defendant Noll are to be tried separately per Federal Rule of Civil

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Procedure 42(b). The excessive force claims will proceed to trial on September 7, 2016; the

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existing schedule and deadlines remain in effect for those claims. The violation of bodily privacy

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claim awaits a ruling from the Ninth Circuit; the trial date, existing schedule, and deadlines for

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that claim are vacated.

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IT IS SO ORDERED.
Dated: July 19, 2016
SENIOR DISTRICT JUDGE

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