County of Stanislaus v. Travelers Indemnity Company
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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COUNTY OF STANISLAUS,
Plaintiff,
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CIV. NO. 1:14-00666 WBS SMS
ORDER RE: MOTION FOR
RECONSIDERATION
v.
TRAVELERS INDEMNITY COMPANY;
and DOES 1 through 50,
inclusive,
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Defendant.
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On November 5, 2015, the court granted plaintiff’s
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motion for summary judgment with respect to defendant’s duty to
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defend and denied defendant’s motion for summary judgment with
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respect to its duty to indemnify and defend.
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(Docket No. 40).)
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judgment, the court relied on a declaration from Tom Brower, who
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represented that he worked at the Greer Road Landfill during the
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coverage period for the Policy at issue in this case.
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(Nov. 5, 2015 Order
In resolving the cross-motions for summary
Defendant objected to the court’s consideration of Tom
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Brower’s declaration only upon the ground that Brower had not
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been identified in discovery and that discovery had already
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closed.
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exclusion upon that ground was not merited1 and instead reopened
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discovery to allow defendant to depose Brower in order to
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“address any prejudice defendant may suffer at trial.”
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12 n.2.)
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judgment, Brower’s deposition was taken and he testified at that
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deposition that he did not begin working at the Greer Road
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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.
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Defendant now requests that the court reconsider its
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order denying defendant’s motion for summary judgment in light of
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this new evidence.
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however, provided defendant with an opportunity to remedy its
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need to depose Brower for purposes of the summary judgment
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motions.
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affidavit or declaration that, for specified reasons, it cannot
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present facts essential to justify its opposition, the court may:
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(1) defer considering the motion or deny it; (2) allow time to
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obtain affidavits or declarations or to take discovery; or (3)
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issue any other appropriate order.”).
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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
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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).
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and sought only the drastic sanction of exclusion.
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the evidence presented in support of and opposition to the cross-
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motions for summary judgment, the court’s ruling on those motions
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was correct.
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reconsider interlocutory orders to set aside that ruling.
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Based upon
The court will not now use its inherent power to
IT IS THEREFORE ORDERED that defendant’s motion for
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reconsideration be, and the same hereby is, DENIED.
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argument is unnecessary on this motion, the court hereby VACATES
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the hearing set for February 22, 2016 pursuant to Eastern
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District Local Rule 230(g).
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Dated:
February 17, 2016
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Because oral
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