California Sportfishing Protection Alliance v. Paradise Ready Mix, Inc. et al
Filing
47
ORDER signed by Magistrate Judge Gregory G. Hollows on 9/26/11 ORDERING that plaintiff's 16 motion to compel inspections is GRANTED. Defendant shall permit plaintiff to conduct a dry inspection of defendant's facility consistent with pla intiff's second request on any mutually agreeable weekday between 30 days from the date of service of this order on defendant and 12/31/11. Defendant shall permit plaintiff to conduct three wet inspections of defendant's facility consistent with plaintiff's third request, as mutually agreed upon, prior to 12/31/11. Plaintiff's request for expenses incurred in bringing this motion is DENIED; however, defendant is warned that any future failures to comply with the local rules of court or orders of the court will result in sanctions. (Kastilahn, A)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE,
11
Plaintiff,
CIV. NO. S-10-1801 GEB GGH
12
vs.
13
14
WILLIAM CALLAWAY, dba
PARADISE READY MIX, INC.,
15
Defendant.
ORDER
/
16
17
Previously pending on this court’s law and motion calendar for April 28, 2011,
18
was plaintiff’s motion to compel inspections of land and property, filed March 15, 2011.1
19
Defendant did not participate in the joint statement, but filed an opposition to the motion on the
20
day of the hearing. Erik Roper appeared on behalf of plaintiff. Defendant Callaway2 appeared
21
pro se.
22
On May 2, 2011, this court deferred ruling on plaintiff’s motion to compel
23
1
24
25
26
Defendants filed a motion for protective order on the morning of the hearing which was
later withdrawn by Stipulated Order, filed June 21, 2011. (Dkt. no. 33.)
2
Defendant Harrison also appeared at the hearing, but he has since been dismissed from
the action and the case is proceeding against defendant Callaway only, dba Paradise Ready Mix.
(Dkt. nos. 32, 34.)
1
1
pending completion of a settlement conference. The settlement proceedings were not fruitful,
2
and further settlement conference was cancelled on September 9, 2011. Accordingly, plaintiff’s
3
motion to compel will now be addressed.
4
BACKGROUND
5
This case is proceeding on the amended complaint, filed June 21, 2011.
6
California Sportfishing Protection Alliance (“CSPA”) is proceeding as a “citizen enforcer,”
7
under the Clean Water Act, 33 U.S.C. § 1251 et seq., alleging that William Callaway, dba
8
Paradise Ready Mix, Inc. (“PRM”) is continuing to violate the terms of the National Pollutant
9
Discharge Elimination System (NPDES) Permit based on storm water discharged from
10
defendant’s ready mix concrete facility in Paradise. In addition to these alleged violations,
11
plaintiff further alleges that defendant failed to implement the required Best Available
12
Technology Economically Achievable (“BAT”) for toxic and non-conventional pollutants, and
13
Best Conventional Pollutant Control Technology (“BCT”) for conventional pollutants, and that
14
he failed to develop and implement an adequate Storm Water Pollution Prevention Plan and
15
adequate Monitoring and Reporting Program. Plaintiff seeks civil penalties, injunctive relief and
16
costs.
17
Plaintiff seeks to compel inspection of defendant’s facility pursuant to CSPA’s
18
second and third formal notices of inspection issued February 14, 2011. There are two requests
19
for inspection noticed: the second request for inspection seeks one dry inspection and was
20
initially noticed for March 21, 2011; the third request is for three “wet” inspections, during the
21
wet season, March 21 through May 31, 2011.
22
DISCUSSION
23
The requests for inspection seek to inspect areas or equipment from which liquids
24
or runoff may drain, including storm drains, surfaces, loading or unloading areas, maintenance
25
areas, storage areas, fueling areas, bermed areas, entrances, exits, storm water pollution
26
management measures, and areas of potential spill. Samples requested include soil, materials,
2
1
product and runoff. Plaintiff seeks an order of a dry inspection from thirty days of a court order
2
to December 30, 2011. It seeks three wet inspections prior to December 30, 2011. Plaintiff also
3
seeks fees incurred in bringing the instant motion.
4
Although defendant responded to plaintiff’s first request for inspection (which is
5
not at issue here), he did not respond to plaintiff’s second or third requests for inspection. In
6
communication both by phone and by email, Mr. Callaway absolutely refused to grant CSPA
7
access to the Facility for inspections. (Pl.’s Exs. C, D.) Plaintiff argues that pursuant to Fed. R.
8
Civ. P. 34(b)(2)(A), defendant has waived any right to object because he failed to raise any
9
formal objections whatsoever. (Roper Aff., ¶ 16.) Although Rule 34 does not specifically
10
provide for a waiver where an objection is absent or untimely, courts have held that such failure
11
may be deemed a waiver. Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 17, 25
12
(D.D.C. 2009).
13
With respect to the joint statement, plaintiff submitted its draft to defendant, who
14
did not respond to it. (Id., Exs. E, F.) After several phone calls from plaintiff’s counsel,
15
defendant finally informed plaintiff that he was refusing to participate in drafting a joint
16
statement but would be filing his own pleading, in violation of E. D. Local Rule 251. Plaintiff
17
did not file an opposition to the motion until the morning of the hearing, at which time he also
18
filed a motion for protective order. To the extent the rules construe plaintiff’s motion as one
19
concerning a complete and total failure to respond to a discovery request, defendant’s opposition
20
is untimely, and it will not be considered. E. D. Local Rule 251(e).
21
Plaintiff’s second and third requests for inspections will be granted. The requests
22
are relevant to plaintiff’s allegations in the amended complaint that defendant has not complied
23
with federal and state law in controlling discharge of pollutants in the storm water from
24
defendant’s facility. CSPA can inspect defendant’s property to determine whether defendant is
25
properly managing storm water discharges. The requests are also narrowly tailored as to time
26
and areas to be inspected. (Roper Aff., ¶¶ 26, 28.)
3
1
CONCLUSION
2
Accordingly, IT IS HEREBY ORDERED that:
3
1. Plaintiff’s motion to compel inspections of land and property, filed March 15,
4
2011, (dkt. #16), is granted.
5
2. Defendant shall permit plaintiff to conduct a dry inspection of defendant’s
6
facility consistent with plaintiff’s second request on any mutually agreeable weekday between
7
thirty (30) days from the date of service of this order on defendant and December 31, 2011.
8
9
10
11
3. Defendant shall permit plaintiff to conduct three wet inspections of defendant’s
facility consistent with plaintiff’s third request, as mutually agreed upon, prior to December 31,
2011.
4. Plaintiff’s request for expenses incurred in bringing this motion is denied;
12
however, defendant is warned that any future failures to comply with the local rules of court or
13
orders of the court will result in sanctions.
14
DATED: September 26, 2011
15
16
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/CSPA1801.mtc.wpd
17
18
19
20
21
22
23
24
25
26
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?