Morgan v. Napolitano

Filing 118

ORDER signed by Judge Lawrence K. Karlton on 7/2/13: Plaintiff's request for reconsideration of the magistrate judge's denial of plaintiff's motion to compel is DENIED. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN P. MORGAN,
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NO. CIV. S-09-2649 LKK/DAD
Plaintiff,

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v.
O R D E R

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JANET NAPOLITANO, SECRETARY,
U.S. DEPARTMENT OF HOMELAND
SECURITY, IMMIGRATION AND
CUSTOMS ENFORCEMENT, FEDERAL
PROTECTIVE SERVICE,
Defendants.

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/
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Pending before the court is plaintiff’s unopposed request for

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reconsideration of the magistrate judge’s ruling on plaintiff’s

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motion to compel discovery responses. For the reasons set forth

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below, plaintiff’s request will be denied.

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I. BACKGROUND

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Plaintiff John P. Morgan brings this employment discrimination

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lawsuit against defendant Department of Homeland Security (“DHS”),

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with claims arising under Title VII of the Civil Rights Act of

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1964,

the

Americans

with

Disabilities
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Act,

and

the

Age

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Discrimination in Employment Act.

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Plaintiff

was

formerly

employed

by

DHS

as

a

criminal

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investigator in Sacramento. (First Amended Complaint (“FAC”) ¶ 21,

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ECF No. 19.) Plaintiff’s wife is an attorney who has represented

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several DHS employees in employment-related litigation against the

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agency. (FAC ¶ 19.) Plaintiff alleges that he was unlawfully

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subjected to a series of adverse actions by DHS in retaliation for

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(i) his wife’s legal work on behalf of DHS employees, (ii) the

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agency’s suspicion that plaintiff assisted his wife in this work,

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(iii) plaintiff’s direct assistance to DHS employees who complained

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of

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discrimination complaints against the agency. (FAC ¶¶ 122-135.)

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Plaintiff was ultimately removed from service on January 6, 2009.

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(FAC ¶ 7.)

discrimination,

and

(iv)

plaintiff’s

own

filing

of

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On January 29 and 30, 2013, plaintiff served defendant with

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requests for production of documents and special interrogatories.

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(Motion to Compel 1, ECF No. 25.) Plaintiff received responses to

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his discovery requests on March 4, 2013; the parties subsequently

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met-and-conferred regarding these responses. (Joint Statement 1-2,

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ECF No. 26.) On April 24, 2013, plaintiff filed a motion to compel.

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On May 17, 2013, after a hearing on the motion, Magistrate Judge

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Dale A. Drozd declined to rule from the bench, and took the matter

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under submission. (ECF No. 27) On May 30, 2013, the magistrate

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judge issued an order granting in part and denying in part

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plaintiff’s motion. (May 30, 2013 Order, ECF No. 31.) On June 13,

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2013,

plaintiff

timely

filed
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the

instant

request

for

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reconsideration. (ECF No. 33.)

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defendant

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reconsideration request, but did not do so.

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II. STANDARD

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had

7

days

to

Under Local Rule 303(d),

file

an

opposition

to

plaintiff’s

Under Local Rule 303(c), “A party seeking reconsideration of

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the

Magistrate

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reconsideration by a Judge . . . . Such request shall specifically

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designate the ruling, or part thereof, objected to and the basis

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for

that

Judge’s

objection.”

ruling

Local

Rule

shall

303(f)

file

a

provides

request

that

for

“[t]he

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standard that the assigned Judge shall use in all such requests is

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the ‘clearly erroneous or contrary to law’ standard set forth in

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28 U.S.C. § 636(b)(1)(A).”

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The latter statute provides:

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Notwithstanding any provision of law to the
contrary . . . a judge may designate a magistrate
judge to hear and determine any pretrial matter
pending before the court, except [certain specified
matters]. A judge of the court may reconsider any
pretrial matter under this subparagraph (A) where it
has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.

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An order is “clearly erroneous” if “although there is evidence

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to support it, the reviewing court on the entire evidence is left

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with the definite and firm conviction that a mistake has been

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committed.” U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

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“[R]eview under the ‘clearly erroneous' standard is significantly

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deferential . . . .” Concrete Pipe and Prods. v. Constr. Laborers

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Pension Trust, 508 U.S. 602, 623 (1993). Under the “contrary to

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law” standard, a district court may conduct independent review of
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purely legal determinations by a magistrate judge. Computer Econ.,

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Inc. v. Gartner Grp., Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal.

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1999) (Whelan, J.).

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Magistrate judges are given broad discretion as to discovery

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matters; their decisions on such matters should not be overruled

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absent a showing of clear abuse of discretion. Swenson v. Siskiyou

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County, No. 2:08-cv-01675, 2010 WL 2574099 at *1 (E.D. Cal. June

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24, 2010) (Damrell, J.) (citing Jones v. Sweeney, No. 1:04-cv-

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06214, 2008 WL 3892111 at *1 (E.D. Cal. Aug. 21, 2008) (Ishii,

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J.)).

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The movant’s mere disagreement with a ruling is not grounds

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for reconsideration. U.S. v. Westlands Water Dist., 134 F. Supp.

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2d 1111, 1131 (E.D.Cal. 2001) (Wanger, J.).

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III. ANALYSIS

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Plaintiff wishes the court to reconsider the denial of his

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motion to compel responses to two requests for production and one

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special interrogatory. These discovery requests concern defendant’s

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handling of an inquiry into the activities of one Mario Canton,

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another DHS employee. Plaintiff alleges that Canton made false

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statements in several job applications, which plaintiff and others

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then reported to various authorities. (FAC ¶¶ 70, 71, 91.) It

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appears that at some point Canton was investigated for making false

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statements, and a report concerning this investigation issued on

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September 11, 2009. Subsequently, defendant received one or more

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further allegations regarding Canton’s alleged malfeasance. (Joint

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Statement 9.) The instant discovery dispute centers around the
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handling of these later allegations.

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Plaintiff’s request for production no. 2 provides:

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All documents created subsequent to the completion of
REPORT NUMBER 001, CASE NUMBER 200907113,
Administrative Inquiry Report, CANTON, MARIO/SUPVY
CRIM INVSTGRI Falsifications/SAN FRANCISCO, SAN
FRANCISCO, CA, completed and approved September 11,
2009 that refers to Mario Canton disclosing
investigative information prior to the completion of
the just identified report. (Joint Statement 9.)

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Plaintiff’s Request for Production no. 4 provides:
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All documents setting out or describing the policies
and procedures for the responding to information or
allegations referring to the administrative inquiry of
CANTON, MARIO/SUPVY CRIM INVSTGR/Falsifications/SAN
FRANCISCO, SAN FRANCISCO, CA, received after September
11, 2009. (Id. 10.)

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Plaintiff’s Special Interrogatory no. 4 provides:

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Identify all documents setting out or describing the
policies and procedures for the responding to
information or allegations referring to the
administrative inquiry of CANTON, MARIO/SUPVY CRIM
INVSTGR/Falsifications/SAN FRANCISCO, SAN FRANCISCO,
CA, received after September 11, 2009. (Id. 17.)

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Magistrate Judge Drozd declined to compel responses to the

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discovery requests at issue, primarily on the grounds that they

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lack relevance. With respect to the requests for production of

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documents, he wrote, “The court fails to see how documents created

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in response to a call for an investigation received well after

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plaintiff’s employment with defendant ended are in any way relevant

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to this action.” (May 13, 2013 Order 3.)

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special interrogatory, Magistrate Judge Drozd wrote, “Defendant

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objects, asserting that plaintiff’s request is overbroad, vague and

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ambiguous. The Court agrees, and also finds that the requested
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With respect to the

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discovery does not appear relevant to any of plaintiff’s claims in

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this action.” (Id. 6.)

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The

court

finds

no

clear

error

or

inappropriate

legal

determination in these orders.

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The gravamen of plaintiff’s argument is that, although he and

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Canton were similarly-situated employees, DHS — due to its animus

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against plaintiff — handled the allegations against them very

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differently.

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discipline for the same charges for which Morgan was removed, but

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instead Canton was recently promoted to the highest position in the

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[Federal Protective Service] region of Regional Director. This

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disparate treatment goes to the core of Plaintiff’s case.” (Request

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for Reconsideration 3.) Plaintiff adds that his “removal and the

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failure to investigate allegation of misconduct by Canton were

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close in time. There is no reason for the defendant to have

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different investigation standards in this relatively short period

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of time.” (Id.)

Plaintiff

argues,

“Canton

not

only

received

no

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Plaintiff was fired on January 6, 2009. The magistrate judge

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has determined that documents created after September 11, 2009, in

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connection with the investigation of Canton are not relevant to the

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claims raised in plaintiff’s complaint. Plaintiff offers no legal

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argument for his contrary position. He does not, e.g., point to

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case law demonstrating how an agency’s handling of an employee

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investigation, more than eight months after another employee was

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terminated,

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termination. Absent a showing of legal error, the court is left to

is

relevant

to

claims

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arising

from

the

earlier

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consider whether the magistrate judge abused his discretion or

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committed a clear error in reaching his determination. Deciding

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when the object of discovery is so temporally removed from the

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events giving rise to a claim that the discovery is irrelevant

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calls for an exercise of judgment. In deciding this question, the

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magistrate judge appears to have exercised his considered judgment.

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Eight months is a substantial amount of time; certainly not brief

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enough to justify overturning the magistrate judge’s ruling as a

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case of clear error.1

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In addition, the court finds that both Request for Production

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no. 4 and Special Interrogatory no. 4 are so vague and ambiguous

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as to not admit of proper response. In particular, the phrase “the

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policies and procedures for the [sic] responding to information or

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allegations referring to the administrative inquiry of [Mario

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Canton],” which occurs in both discovery requests, is nearly

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incomprehensible.

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One further matter merits discussion. In support of his motion

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to compel, plaintiff wrote, “[A]fter production of the documents

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Moreover, according to defendant, “The only contention
Plaintiff makes as to similar misconduct by Canton relates to
evidence which was not presented to the agency until 2012, when
Plaintiff’s counsel provided an affidavit to the head of the
regional Office of Professional Responsibility . . . with a demand
that he immediately open an investigation.” (Joint Statement 9.)
If defendant’s characterization of events is accurate, more than
three years elapsed between the date of plaintiff’s termination and
the point at which Canton should allegedly have been investigated
in the same manner as plaintiff. The length of this interval only
bolsters the magistrate judge’s finding that too much time had
passed to make the agency’s handling of the Canton matter relevant
to plaintiff’s case.
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[related to the investigation of Canton], [plaintiff] made a demand

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to the Agent in Charge for the San Francisco Office of Processional

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Responsibility investigate the allegations of Canton’s misconduct

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of attempting to influence a witness in a manner of which he was

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the target of the investigation [sic]. These allegations should

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have been investigated when they were first received.” (Joint

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Statement 9).

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was fired, during the course of this litigation, he presented

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allegations to defendant which he contends should have triggered

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an investigation similar to the one that he (plaintiff) faced. If

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the

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plaintiff made a substantial misrepresentation in alleging that

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“[v]ery shortly after the Canton investigation was closed,

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agency employee accused Canton, in writing through appropriate

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channels, of essentially the same conduct for which Morgan was

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removed.” (Request for Reconsideration 3.) Plaintiff was most

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decidedly not an agency employee after January 6, 2009, and should

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not have characterized himself as such. It may be that the court’s

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understanding is incorrect, and that, somewhere in the thicket of

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filings in this action, there lies an allegation of another party

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having alleged Canton’s malfeasance to defendant after September

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11, 2009. Otherwise, plaintiff is cautioned to present the facts

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more accurately in the future or risk sanction.

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IV. CONCLUSION

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court’s

Here, plaintiff appears to be saying that, after he

understanding

is

correct, then it appears that

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For the reasons set forth above, plaintiff’s request for
reconsideration of the magistrate judge’s denial of plaintiff’s
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motion to compel is DENIED.

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IT IS SO ORDERED.

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DATED:

July 2, 2013.

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