Luciano v. United States of America, et al.,

Filing 31

ORDER signed by Judge Garland E. Burrell, Jr. on 12/19/12 ORDERING 27 Motion is stricken and 28 Ex Parte Motion is denied. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT A. LUCIANO, JR., Trustee
of the Robert A. Luciano Jr.
Revocable Trust Dated February
27, 1995,

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Plaintiff,
v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF
AGRICULTURE; TOM VILSACK,
Secretary of Agriculture; UNITED
STATES FOREST SERVICE; TOM
TIDWELL; RANDY MOORE; and EARL
FORD; and DEB BUMPUS,
Defendants.
________________________________

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2:11-cv-01831-GEB-KJN
ORDER STRIKING PLAINTIFF’S
MOTION TO AUGMENT THE
ADMINISTRATIVE RECORD AND
DENYING PLAINTIFF’S EX PARTE
APPLICATION

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On December 13, 2012, Plaintiff filed an Ex Parte Application

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to Modify the Status Order, requesting “that the Court modify the

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scheduling order by extending the current deadlines for the filing of

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dispositive motions . . . by a minimum of three (3) weeks or,” in the

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alternative, “that the Court issue an order shortening the time in which

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Plaintiff’s Motion to Augment the Administrative Record, [also filed on

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December 13, 2012,] may be heard.” (Pl.’s Ex Parte Appl. 3:18-23.)

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Plaintiff’s Motion to Augment the Administrative Record was noticed for

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hearing on January 22, 2013, and the September 12, 2012 Status Order

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prescribes that Plaintiff shall file his motion for summary judgment no

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later than January 14, 2013. See ECF No. 25, 2:6-7.

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Plaintiff states his “application is made on the grounds that

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good cause exists to modify the scheduling order, and Plaintiff has

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exercised due diligence in the conduct of this litigation . . . .” Id.

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at 2:7-9. In essence, Plaintiff argues that he seeks to augment the

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administrative record with the deposition testimony of six government

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officials and that said testimony “is critical for effective judicial

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review of the instant case.” Id. at 4:1-3; see also Decl. of Richard

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Hart in Supp. of Ex Parte Appl. ¶¶ 2-3, Ex. A. Plaintiff further argues

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that his counsel received “the last deposition transcript sought to be

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admitted” on December 3, 2012. Id. at 4:3-4, 4:18-21.

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Defendants oppose Plaintiff’s ex parte application, stating

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neither Plaintiff’s request “to extend the deadline for filing his

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summary judgment motion” or “to shorten time for hearing his motion to

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augment” should be granted. (Defs.’ Opp’n 2:3-5.) Defendants argue “[a]

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shortened

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opportunity to file a complete response to Plaintiff’s Motion to

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Augment” because “[s]he will be out of the Sacramento area both for work

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and on leave from December 18, 2012, until January 2, 2013.” Id. 2:6-10.

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Defendant further argues that “Plaintiff has waited until . . . four

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months after the deadline set out in the Scheduling Order to move to

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augment the record[,]” and Plaintiff “should not be rewarded for his

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improper and dilatory behavior by gaining an unnecessary extension of

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his deadline to file his summary judgment motion . . . .” Id. 2:12-3:4.

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The June 19, 2012, Status Order referenced that “the parties

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. . . dispute whether . . . the administrative record may need to be

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supplemented in this action” and prescribed: “Plaintiff shall file a

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motion . . . to augment the administrative record no later than August

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13, 2012 . . . .” (ECF No. 22, 1:20-25.) Plaintiff’s motion to augment

hearing

schedule

would

not

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allow

[Defense

counsel

the]

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the administrative record was filed four months after this deadline;

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therefore it is stricken.

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Further, Plaintiff’s ex parte application is DENIED since

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Plaintiff has neither shown good cause to modify the status order to

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extend the “deadlines for the filing of dispositive motions,” nor

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“circumstances . . . justify[ing] the issuance of an order shortening

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time.” E.D. Cal. R. 144(e).

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filed in support of Plaintiff’s Motion to Augment the Administrative

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Record, and attached exhibits, evince that the deposition testimony

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sought to be admitted was taken in an inverse condemnation action

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pending in the United States Court of Federal Claims entitled Luciano v.

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United States, Case No. 11-439. Plaintiff’s counsel avers he is also

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“counsel for Mr. Luciano in [that action]” and “personally conducted all

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of the depositions sought to be admitted” in this case. (Decl. of

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Richard Hart in Supp. of Mot. to Augment ¶¶ 2, 4, 12-14, 39, Exs. B-E.)

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Four of the six depositions at issue were taken on August 13, 2012,

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August 22, 2012, August 28, 2012, and November 7, 2012, respectively.1

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Since Plaintiff’s counsel conducted each of these depositions, it is

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unknown why he did not determine that the testimony was pertinent to

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this action until he received “the last deposition transcript” on

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December 3, 2012.

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Dated:

A review of the Declaration of Richard Hart

December 19, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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Plaintiff’s filings
depositions were taken.

do

not
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evince

when

the

other

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