County of Stanislaus v. Travelers Indemnity Company

Filing 49

ORDER signed by Senior Judge William B. Shubb on 2/17/2016 DENYING 46 Defendant's Motion for Reconsideration. Because oral argument is unnecessary on this motion, the court hereby VACATES the hearing set for 2/22/2016 pursuant to Eastern District Local Rule 230(g). (Kirksey Smith, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 COUNTY OF STANISLAUS, Plaintiff, 13 14 15 16 CIV. NO. 1:14-00666 WBS SMS ORDER RE: MOTION FOR RECONSIDERATION v. TRAVELERS INDEMNITY COMPANY; and DOES 1 through 50, inclusive, 17 18 Defendant. ----oo0oo---- 19 20 On November 5, 2015, the court granted plaintiff’s 21 motion for summary judgment with respect to defendant’s duty to 22 defend and denied defendant’s motion for summary judgment with 23 respect to its duty to indemnify and defend. 24 (Docket No. 40).) 25 judgment, the court relied on a declaration from Tom Brower, who 26 represented that he worked at the Greer Road Landfill during the 27 coverage period for the Policy at issue in this case. 28 (Nov. 5, 2015 Order In resolving the cross-motions for summary Defendant objected to the court’s consideration of Tom 1 1 Brower’s declaration only upon the ground that Brower had not 2 been identified in discovery and that discovery had already 3 closed. 4 exclusion upon that ground was not merited1 and instead reopened 5 discovery to allow defendant to depose Brower in order to 6 “address any prejudice defendant may suffer at trial.” 7 12 n.2.) 8 judgment, Brower’s deposition was taken and he testified at that 9 deposition that he did not begin working at the Greer Road 10 The court determined that the drastic sanction of (Id. at After the court ruled on the cross-motions for summary Landfill until after the coverage period. 11 Defendant now requests that the court reconsider its 12 order denying defendant’s motion for summary judgment in light of 13 this new evidence. 14 however, provided defendant with an opportunity to remedy its 15 need to depose Brower for purposes of the summary judgment 16 motions. 17 affidavit or declaration that, for specified reasons, it cannot 18 present facts essential to justify its opposition, the court may: 19 (1) defer considering the motion or deny it; (2) allow time to 20 obtain affidavits or declarations or to take discovery; or (3) 21 issue any other appropriate order.”). 22 23 Federal Rule of Civil Procedure 56(d), See Fed. R. Civ. P. 56(d) (“If a nonmovant shows by Defendant did not request an opportunity to depose Brower under Rule 56(d) in order to respond to plaintiff’s motion 24 1 25 26 27 28 In determining whether the sanction of exclusion is merited, the court considered “1) the public’s interest in expeditious resolution of litigation; 2) the court’s need to manage its docket; 3) the risk of prejudice to the defendants; 4) the public policy favoring disposition of cases on their merits; 5) the availability of less drastic sanctions.” Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997). 2 1 and sought only the drastic sanction of exclusion. 2 the evidence presented in support of and opposition to the cross- 3 motions for summary judgment, the court’s ruling on those motions 4 was correct. 5 reconsider interlocutory orders to set aside that ruling. 6 Based upon The court will not now use its inherent power to IT IS THEREFORE ORDERED that defendant’s motion for 7 reconsideration be, and the same hereby is, DENIED. 8 argument is unnecessary on this motion, the court hereby VACATES 9 the hearing set for February 22, 2016 pursuant to Eastern 10 District Local Rule 230(g). 11 Dated: February 17, 2016 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Because oral

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