California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc. et al

Filing 163

ORDER RE DEFENDANTS' MOTION TO BIFURCATE OR, IN THE ALTERANTIVE, MOTION FOR A PROTECTIVE ORDER AND MOTION TO RECONSIDER DISCOVERY ORDER; ORDER AMENDING DEADLINE TO COMPLETE CERTAIN EXPERT DISCOVERY* signed by Judge Garland E. Burrell, Jr on 12/2/14 ORDERING that The parties' stipulation to extend the expert disclosure deadlines concerning the specified expert opinion testimony is approved.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,

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Plaintiff,

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No. 2:10-cv-01207-GEB-AC

ORDER RE DEFENDANTS’ MOTION TO
BIFURCATE OR, IN THE
ALTERANTIVE, MOTION FOR A
PROTECTIVE ORDER AND MOTION TO
RECONSIDER DISCOVERY ORDER;
ORDER AMENDING DEADLINE TO
COMPLETE CERTAIN EXPERT
DISCOVERY*

v.
CHICO SCRAP METAL, INC., a
California corporation;
GEROGE W. SCOTT, SR.
REVOCABLE INTER VIVOS TRUST;
GEORGE SCOTT, SR., an
individual; and GEORGE SCOTT,
JR., an individual,

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Defendants.

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Defendants

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argue

in

alternative

motions

that

they

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“renew their motion for bifurcation” of the liability and penalty

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phases of this action “in light of th[e] Court‟s earlier Order

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[denying their original bifurcation motion] and further evidence

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now

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discovery of defendants‟ financial information[,]” or “limiting

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the

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modification

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Discovery Order.” (Mem. P.&A. in Supp. of Defs.‟ Am. Mot. to

presented[;]”

scope

of

“seek

.

discovery[;]”
of

[Magistrate

.

.

and

protective

“seek

Judge

order[s]

staying

reconsideration

Claire‟s

October

9,

and/or
2014]

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*

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The hearing on December 22, 2014, is vacated since this
suitable for decision without oral argument. E.D. Cal. R. 230(g).

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matter

is

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Bifurcate (“Defs.‟ Mot.”) 1:9-19, ECF No. 159-1.) For the reasons

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stated below, each request is denied.

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A.

Reconsideration of Defendants’ Bifurcation Motion

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Defendants essentially seek, in what they characterize

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as their “renewed” motion for bifurcation, reconsideration of the

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Court‟s June 4, 2014 Order Denying [Their Original] Motion to

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Bifurcate. However, Defendants neither address, nor show they

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have satisfied, the legal standard which governs reconsideration

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of that order. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“Rule 60(b)

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provides for reconsideration only upon a showing of (1) mistake,

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surprise, or excusable neglect; (2) newly discovered evidence;

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(3) fraud; . . . or (6) „extraordinary circumstances‟ which would

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justify

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omitted)). Further, Defendants‟ reconsideration request does not

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comply with Local Rule 230(j), which prescribes in relevant part:

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Whenever . . . a . . . motion for
reconsideration is made upon the same or any
alleged different set of facts, counsel shall
present to the Judge . . . an affidavit or
brief . . . setting forth . . . (3) what new
or different facts or circumstances are
claimed to exist which did not exist or were
not shown upon such prior motion, or what
other grounds exist for the motion; and (4)
why the facts or circumstances were not shown
at the time of the prior motion.

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relief.”

(internal

Defendants

citation

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bifurcation”

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Defendants do not specify what additional evidence is offered or

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explain why such evidence was not presented in their original

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bifurcation motion. Therefore, Defendants‟ “renew[ed] motion for

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bifurcation” is denied.

on

“further

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“renew[ed]

and

Although

based

their

marks

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is

state

quotation

evidence

now

motion

for

presented[,]”

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B.

Alternative Request for a Protective Order(s)

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Defendants‟ alternative request under Federal Rule of

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Civil Procedure (“Rule”) 26(c)(1) for a protective order(s) is

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not decided since “all . . . motions relating to protective

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orders . . . submitted or filed for hearing before discovery

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cutoff”1 are to be decided by the Magistrate Judge. E.D. Cal.

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302(c)(1).

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C.

Reconsideration of Discovery Order

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Defendants also seek under Rule 72(a) and Local Rule

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303(c) “reconsideration of a portion of . . . Magistrate Judge

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Claire[‟s October 9, 2014 Discovery Order],” specifically, “[her]

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failure

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requested

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Defendants

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that the objections were not timely introduced is contrary to

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law, which does not deem objections waived unless a party clearly

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makes no effort until after an adverse ruling to interpose an

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objection.” (Id. at 3:4-6.)

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to

consider

[D]efendants‟

discovery.”
contend

(Defs.‟

“[t]he

Mot.

objections
2:18-19,

[Magistrate

to

scope

3:1-6,

Judge‟s]

of

the

15:14-17.)

passing

remark

“If a party objects to a nondispositive pretrial ruling

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by

a

magistrate

judge,

the

district

court

will

review

or

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reconsider the ruling under the „clearly erroneous or contrary to

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law‟ standard.” Mackey v. Frazier Park Pub. Util. Dist., No.

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1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D. Cal. Oct. 25,

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2012) (quoting Fed. R. Civ. P. 72(a)). “A magistrate judge‟s

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factual findings are „clearly erroneous‟ when the district court

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“The final day to „complete‟ . . . discovery [is] Monday, January 26,
2015 . . . .” (Stipulation Modifying Pretrial Scheduling Order 3:16-17, ECF
No. 151; see also Minute Order approving the referenced stipulation, ECF No.
152.)

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is left with the definite and firm conviction that a mistake has

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been

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Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). “However, the

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district court „may not simply substitute its judgment for that

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of the deciding court.‟” Id. (quoting Grimes v. City of S.F., 951

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F.2d 236, 241 (9th Cir. 1991)). “An order „is contrary to law

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when it fails to apply or misapplies relevant statutes, case law,

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or rules of procedure.‟” Id. (quoting Knutson v. Blue Cross &

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Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)). “A

committed.”

Id.

pre-trial

Sec.

Farms

discovery

v.

Int‟l

orders

are

Bhd.

of

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magistrate

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considered nondispositive orders.” Id. (citing Thomas E. Hoar,

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Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)).

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judge‟s

(quoting

generally

Here, the Magistrate Judge held in the Discovery Order,

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inter

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Plaintiff‟s third set of requests for production] was . . .

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untimely and w[ould] not be considered . . . to the extent that

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it

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(Discovery Order 7:13-16, ECF No. 158.) Defendant has not shown

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the Magistrate Judge‟s ruling on this issue was clearly erroneous

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or

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Rawstrom, 183 F.R.D. 668, 671-72 (C.D. Cal. 1998) (“[O]bjections

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not

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objections are contained in a later untimely response, absent a

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showing

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reconsideration of the Discovery Order is denied.

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alia,

raise[d]

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to

included

D.

“Defendants‟

objections

contrary

of

that

in

good

law.

a

not

See,

timely

cause.”).

supplemental

raised

e.g.,

in

its

Safeco

response

Therefore,

are

response

original

Ins.

Co.

response.”

of

waived

even

Defendants‟

[to

Amer.

if

request

v.

the

for

Extension of Certain Discovery Deadlines
Lastly, on November 24, 2014, the parties stipulated to

extend

the

deadline

to

conduct
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certain

expert

discovery,

as

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follows:

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(1) The last day to exchange expert
witness disclosures for experts designated to
provide
opinion
testimony
regarding
Defendants‟ financial wherewithal and the
alleged economic benefit Defendants derived
from violating the Clean Water Act and shall
be extended from November 24, 2014 to the
date 45 days following the date of production
of Defendants‟ financial records; [and]

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(2) The last day to designate rebuttal
experts or provide supplementary reports will
be twenty days (20) following the designation
of experts in Paragraph (1) . . . .

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(Stipulation & Proposed Order Modifying Expert Disc. Deadlines

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3:2-11, ECF No. 162.)

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The

parties‟

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disclosure

deadlines

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testimony is approved.

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Dated:

stipulation

concerning

December 2, 2014

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the

to

extend

specified

the

expert

expert

opinion