USA v. Sterling Centrecorp Inc. et al

Filing 196

ORDER signed by Judge Morrison C. England, Jr. on 10/29/2012 DENYING 189 Request for Augmentation of 186 Final Pretrial Order. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
and CALIFORNIA DEPARTMENT
OF TOXIC SUBSTANCES CONTROL,

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Plaintiffs,

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No. 2:08-cv-02556-MCE-JFM

ORDER

v.
STERLING CENTRECORP INC.,
STEPHEN P. ELDER, and
ELDER DEVELOPMENT, INC.,

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Defendants.

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This is an action brought by Plaintiffs the United States of

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America and the California Department of Toxic Substances Control

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(“Plaintiffs”) pursuant to the Comprehensive Environmental

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Response, Compensation and Liability Act (CERCLA”), 42 U.S.C.

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§ 9601, et seq., seeking, inter alia, the recovery of response

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costs related to the release of hazardous substances from the

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Lava Cap Mine Superfund Site.

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This matter is currently set for a bench trial on

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October 31, 2012.

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the Court augment its Final Pretrial Order in this matter, issued

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on October 1, 2012, so as to permit additional evidence

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concerning Defendant’s claims that a Cleanup and Abatement Order

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(“CAO”) issued by the California Regional Water Quality Control

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Board (“Water Board”) in 1979 was thereafter rescinded.

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Plaintiffs claim that they did not know that Defendants intended

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to make that rescission argument until mid-July of 2012, when the

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logbook entry in question was included within Defendant’s list of

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proposed trial exhibits.

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Plaintiffs seek to introduce certain documents and to offer

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testimony from several former and current Water Board employees.

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On October 5, 2012, Plaintiffs requested that

In the face of that evidence,

In opposition, Defendant points to the fact that in May of

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2011, more than a year before Sterling identified the logbook

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entry, Defendant made exactly the same argument in opposing

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Plaintiffs’ motion for summary judgment, arguing that “a [Water

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Board] log book shows that the CAO was rescinded.”

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25:26-27).

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notice of the issue well before July of 2012 despite their

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argument to the contrary.

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(ECF No. 130,

Defendant consequently argues that Plaintiffs were on

Modification of the PTSO in this instance is proper only if

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the party seeking modification, here the Defendant, shows that

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“manifest injustice” will result in the absence of modification.

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Fed. R. Civ. Pro. 16(e); Byrd v. Guess, 137 F.3d 1126, 1132 (9th

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Cir. 1998) (superseded by statute on other grounds).

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In making that determination, the Court should consider four

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factors: 1) the degree of prejudice or surprise to the Defendant

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if the order is modified; 2) the ability of Defendant to cure the

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prejudice; 3) any impact of modification on the orderly and

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efficient conduct of the trial; and 4) any willfulness or bad

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faith by Plaintiffs.

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Id. at 1132.

Defendant contends that Plaintiffs have shown no

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justification for waiting until now to address the rescission

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issue, and that adding witnesses at this late stage and offering

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them “for last-minute depositions is a burdensome and prejudicial

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distraction on the eve of trial.”

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Court agrees.

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very latest almost a year before the Final Pretrial Conference,

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adding rebuttal witnesses at this juncture, through modification

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of the PTSO, would impact the orderly and efficient conduct of

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the trial, and offering to submit the witnesses now for

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deposition now, at the very eve of trial with trial preparation

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well underway, would prejudice the Defendant.

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any even more fundamental basis, the defense argues that

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“[p]laintiffs have not shown that “manifest injustice” will

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result if they are denied the opportunity to present this

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additional evidence.”

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Def.’s Opp., 2:11-13.

The

Given the fact that this issue surfaced at the

The Court again agrees.

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Further, and on

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Plaintiffs have not demonstrated why the evidence and testimony

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at issue is so critical to their case that it would amount to a

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manifest injustice if the FPTO were not modified to permit such

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evidence/testimony.

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Final Pretrial Order (ECF No. 189) is accordingly DENIED.

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Plaintiffs’ Request for Modification of the

IT IS SO ORDERED.
Dated: October 29, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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