City of Lincoln v. United States of America et al

Filing 62

ORDER signed by District Judge Kimberly J. Mueller on 8/15/2018 ORDERING 34 the City's motion is GRANTED in PART. Specifically, the court permits the City 45 days to take up to a total of 14 depositions. The remainder of the City's motio n is DENIED, including the City's request for leave to amend its complaint to name the County of Placer as an additional defendant and the City's request for leave to modify the scheduling order in other respects, as explained above. In the next 14 days in a joint filing, the parties shall propose any further modification to the scheduling order needed as a result of this order. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CITY OF LINCOLN,

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Plaintiff,

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No. 2:16-cv-01164-KJM-AC
ORDER

v.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT OF
THE AIR FORCE; UNITED STATES
GENERAL SERVICES
ADMINISTRATION; and DOES 1
through 100, inclusive,
Defendants.

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This action arises from the City of Lincoln’s (“City”) lawsuit against the United

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States of America, the United States Air Force, and the United States General Services

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Administration (“Federal Defendants”) for alleged environmental contamination. Before the

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court is the City’s motion for leave to file a First Amended Complaint and to modify the

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scheduling order. Mot., ECF No. 34-1. Specifically, the City requests what amounts to the

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following:
1. Leave to amend and file a First Amended Complaint to name the County of Placer

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as an additional defendant,

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2. Leave to amend and file a First Amended Complaint to include additional factual

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allegations against the Federal Defendants, and

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3. A modification of the scheduling order to extend discovery and expert discovery

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by four months, and to increase the number of fact discovery depositions from ten

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to twenty.

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The Federal Defendants oppose the motion. Opp’n, ECF No. 37. The City has replied. Reply,

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ECF No. 40. Because the City “with[drew] its [second] request to include additional factual

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allegations against Defendants,” Reply at 1 n.1, the City’s second request to add factual

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allegations against the Federal Defendants is DENIED as MOOT. The court therefore analyzes

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the City’s first and third requests only. For the below reasons, the court DENIES City’s first

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request to add the County of Placer and DENIES the City’s third request to modify the scheduling

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order.

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I.

BACKGROUND
A. Factual Background1

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Since 1952, the City of Lincoln has owned, operated and maintained a six-acre

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landfill (“Dump”) in Placer County, California. Defs.’ Statement of Undisputed Facts (“SUF”) 1-

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4, ECF No. 22-2. From approximately 1961 to 1966, the Dump was operated five days per week

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and received mixed refuse from local businesses and approximately 1,200 residences. SUF 11,

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16-18. The Dump reduced its operations starting in 1971, ceased operations in 1976 and was

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enclosed with a low permeability cover in 1993. SUF 22-23, 25, 32; see also Pl.’s Statement of

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Disputed Facts (“SDF”) 91, ECF No. 25-1.

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In January 1960, the Army Corps of Engineers contracted with Peter Kiewit &

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Sons Co. (“Kiewit”) to construct three Titan I Intercontinental Ballistic Missile (“ICBM”) launch

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facilities near Beale Air Force Base and in the cities of Lincoln, Sutter and Chico. SUF 38; Defs.’

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This Factual Background section is based in part on the court’s order granting the United States’
motion to dismiss the City’s Federal Tort Claims Act claims. See ECF No. 38 at 2–4. The court
relies on the parties’ statement of undisputed facts for convenience and because these facts better
reflect the development of the case since the filing of the initial complaint.

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Ex. 12 (CEBMCO2 Historical Summary) at 13, 17, 19, ECF No. 22-15. At or about this time, the

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United States acquired the property on which it would ultimately locate the Lincoln facility (“the

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Facility”). See SDF 3; Pl.’s Ex. 7, ECF No. 25-13 (finding Air Force acquired 274.99 acres for

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facility in 1958); Pl.’s Ex. 3, ECF No. 25-9 (final judgment awarding United States ownership of

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property in April 1960). Kiewit subcontracted much of the construction to other companies,

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including Superior Electric Construction Co., Inc. (“Superior”), which installed electrical

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systems. SUF 41, 43. After completing construction in early 1962, Kiewit transferred possession

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and control of the facilities to Martin Company (“Martin”), which was then responsible for

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activating the launch facilities before delivering them to the Air Force. SUF 39, 45, 46;

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CEBMCO Historical Summary at 19, 34. On September 20, 1962, the Air Force accepted and

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took over the missile launch facilities from Martin. SUF 50.

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The parties agree that one private subcontractor disposed of refuse at the Dump,

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SUF 52, but dispute whether any other contractor or subcontractor disposed of refuse at the Dump

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during the pre-operational period from January 1960 to September 1962. See id. The parties also

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dispute whether defendants’ employees, including Army Corps of Engineers’ Resident Office

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employees, Lincoln facility site inspectors and other Air Force personnel, disposed of refuse. See

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SDF 94. Starting in September 1962, the City began collecting thirty-three-gallon cans of refuse

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from the Facility three times per week. SUF 65-67. The parties dispute the contents of this

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refuse and whether the contents were hazardous. See SUF 70-71; SDF 105-107; Pl.’s Objs. 2-4,

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ECF No. 25-33; Pasilla Dep. at 150:21-23. The City continued to collect the Facility’s refuse

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until at least January 1965, when the Air Force began deactivating the missiles and shutting down

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the Facility. SUF 73-76.

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Plaintiff alleges subcontractors and contractors for the Federal Defendants dumped

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hazardous refuse in the Dump. Compl. ¶¶ 12-15, ECF No. 1. The California Regional Water

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Quality Control Board (“the RWQCB”) issued a Waste Discharge Requirements order for the

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Core of Engineers Ballistic Missile Construction Office. See ECF No. 22-15.

The court cites these objections only to show the parties’ dispute. The court otherwise only
relies on evidence for which the court has overruled objections.
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Dump. SUF 31; Defs.’ Ex. 11 (RWQCB Order No. R5-2003-0142) at 1 ¶ 4, ECF No. 22-14. The

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RWQCB required the City to maintain five feet of separation between groundwater and the

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bottom of the landfill, and to define how much of the groundwater contained total dissolved

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solids and volatile organic compounds. SUF 34. The RWQCB found the City had violated the

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order because releases from the Dump affected nearby groundwater quality, and the Dump failed

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to ensure the required five-foot separation. SUF 35, Defs.’ Ex. 5 (RWQCB Order R5-2014-0703)

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at 2-4, ECF No. 22-8. The RWQCB required the City to develop a Corrective Action Plan

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(“CAP”) to maintain the minimum five-foot separation, remediate groundwater impacts and

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maintain the landfill cover. SUF 37; RWQCB Order R5-2014-0703 at 7 ¶¶ 31-33.

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B. Procedural Background
In this case, the City sues the Federal Defendants to recover costs of the

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environmental contamination, and initially brought the following six claims: (1) Continuing

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Nuisance; (2) Continuing Trespass; (3) Equitable Indemnity / Contribution; (4) Cost Recovery

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under the Comprehensive Environmental Response, Compensation, and Liability Act

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(“CERCLA”), 42 U.S.C. § 9607(a); (5) Contribution under CERCLA, 42 U.S.C. § 9613; and

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(6) Declaratory Relief. Compl., ECF No. 1. Claims 1 through 3 have been dismissed. ECF

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No. 38 at 2-4. Parties have since engaged in voluminous discovery. Mot. at 3. The Federal

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Defendants have produced approximately 54,000 pages of discovery, and the City has produced

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approximately 81,000 pages of discovery. Id.

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1. Initial Pretrial Scheduling Order

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The court issued its initial pretrial scheduling order on November 10, 2016.

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Sched. Order, ECF No. 11. In its initial order, the court provided, “The City may seek additional

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amendments to the pleading and joinder of additional defendants. . . . The United States may file

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counter claims. No further joinder of parties or amendments to pleadings is permitted without

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leave of court, good cause having been shown.” Id. at 2.

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The court initially set October 6, 2017 as the deadline for the completion of

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discovery. Id. The City’s initial expert designations were set to be completed by November 14,

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2017; the Federal Defendants’ initial expert designations were set to be completed by January 12,
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2018. Id. at 4. The City’s deadline for rebuttal expert witnesses was set for February 9, 2018. Id.

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Expert discovery was set to be completed by March 14, 2018. Id.

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2. Amendments to Pretrial Scheduling Order

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The court amended its initial scheduling order for the first time on December 7,

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2016, without changing the discovery deadlines. Compare Sched. Order at 4, with First Am.

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Sched. Order at 4, ECF No. 18.

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Good cause appearing, the court issued its Second Amended Scheduling Order on

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October 6, 2017. Second Am. Sched. Order, ECF No. 42. The parties filed a stipulation

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requesting a clarification of the court’s Second Amended Scheduling Order on October 18, 2017.

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ECF No. 43. Good cause appearing, the court issued its Third Amendment to the Pretrial

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Scheduling Order on October 23, 2017, clarifying the discovery dates. Third Am. Sched. Order,

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ECF No. 44. The new dates were as follows: discovery cut-off extended to February 9, 2018;

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plaintiffs’ expert disclosures extended to March 14, 2018; defendants’ expert disclosures

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extended to May 14, 2018; supplemental expert disclosures extended to June 11, 2018; and

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completion of expert discovery extended to July 13, 2018. Id. at 2.

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The parties then filed a stipulation requesting a fourth amendment to the pretrial

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scheduling order, ECF No. 57, noting a magistrate judge’s order, ECF No. 54, permitting two

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scheduled depositions to occur after the fact discovery cut-off of February 9, 2018. See ECF

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No. 57 at 2. The parties jointly requested an amendment to the pretrial order to reflect the

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discovery cut-off as “[c]omplete.” Id. at 3. The parties acknowledged the City had taken four

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depositions since the third amendment to the pretrial scheduling order, issued more than six

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months before this stipulation. Compare Third Am. Sched. Order (dated Oct. 23, 2017), with

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ECF No. 57 (dated May 8, 2018). The court granted this request. ECF No. 58.

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3. City’s Motion to Amend

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The City filed this Motion to Amend on September 6, 2017, a little more than a

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month before the court issued its Third Amended Scheduling Order. Mot. at 20; Third Am.

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Sched. Order. In its motion, the City seeks: (1) Leave to amend to file a First Amended

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Complaint naming the County of Placer as an additional defendant, (2) Leave to amend to file a
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First Amended Complaint including additional factual allegations against the existing Federal

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Defendants, and (3) Modification of the scheduling order to extend fact discovery and expert

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discovery by four months, and to increase the number of depositions allowed from ten to twenty,

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excluding expert depositions. Mot. at 1.

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4. The Federal Defendants’ Opposition

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The Federal Defendants filed their opposition on September 22, 2017. Opp’n at

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18. They “[do] not oppose the City’s motion to the extent the City seeks a four-month extension

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of the discovery deadlines with respect to the City’s claims under the Comprehensive

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Environmental Response, Compensation and Liability Act (“CERCLA”), but opposes the City’s

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motion in all other respects.” Opp’n at 5.

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5. City’s Reply and Parties’ Stipulation for Modification of Scheduling Order

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The City filed its reply and a stipulation by parties to modify the scheduling order

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on September 29, 2017. Stip., ECF No. 39; Reply at 10. In its reply, the City requests the court

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grant the extension for the reasons stated in the moving papers, and for the reasons stated in the

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joint stipulation. Reply at 1 n.1. The City also withdrew its request to include additional factual

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allegations against defendants in light of the court’s ruling on the defendants’ motion to dismiss.

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Id. The City’s second request to add factual allegations is DENIED as MOOT.

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The court thus analyzes the City’s first and third requests.
II.

LEGAL STANDARDS
A. Motion to Amend Complaint
When a party seeks to amend its complaint after a Rule 16 scheduling order has

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been issued, the party’s ability to amend its complaint is governed by Rule 16(b), not Rule 15(a).

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992); see also Johnson v.

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St. Mary, No. CIV S-06-0508 WBS EFB PS, 2007 WL 1100507, at *1 (E.D. Cal. Apr. 11, 2007),

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findings and recommendations adopted, No. CIV-S-06-0508-WBS EFB PS, 2007 WL 1365400

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(E.D. Cal. May 9, 2007) (“[The Eastern District], applying Johnson [v. Mammoth Recreations],

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has confirmed that once the district court has filed a pretrial scheduling order pursuant to Federal

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Rule of Civil Procedure 16, a motion to amend the pleadings is governed first by Rule 16(b), and
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only secondarily by Rule 15(a)”). Under Rule 16(b), a movant must demonstrate “good cause” to

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justify adding a new defendant. Mammoth, 975 F.2d at 608; St. Mary, 2007 WL 1100507, at *1

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(citing Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999); Roberts v. Beard,

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No. 15cv1044-WQH-PCL, 2018 WL 454437, at *4 (S.D. Cal. Jan. 17, 2018). “The ‘good cause’

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standard ‘focuses on the diligence of the party seeking amendment.’” St. Mary, 2007 WL

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1100507, at *1. “Relevant inquiries [into diligence] include: whether the movant was diligent in

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helping the court to create a workable Rule 16 order; whether matters that were not, and could not

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have been, foreseeable at the time of the scheduling conference caused the need for amendment;

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and whether the movant was diligent in seeking amendment once the need to amend became

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apparent.” Id. If the party was not diligent, the inquiry ends. Mammoth, 975 F.2d at 609.
B. Motion to Amend Scheduling Order and Take Additional Depositions

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The court will modify dates set forth in a scheduling order only upon a showing

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of good cause by the moving party. Fed. R. Civ. P. 16(b)(4); Mammoth, 975 F.2d at 608. The

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primary factor considered in a good cause determination is whether the moving party was diligent

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in its attempts to complete discovery in a timely manner. Mammoth, 975 F.2d at 609. If that

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party was not diligent, the inquiry should end and the request should be denied. Id. Courts have

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used a three-step inquiry in assessing diligence for determining good cause under Rule 16:

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[T]o demonstrate diligence under Rule 16's “good cause” standard,
the movant may be required to show the following: (1) that she was
diligent in assisting the Court in creating a workable Rule 16 order;
(2) that her noncompliance with a Rule 16 deadline occurred or will
occur, notwithstanding her diligent efforts to comply, because of the
development of matters which could not have been reasonably
foreseen or anticipated at the time of the Rule 16 scheduling
conference; and (3) that she was diligent in seeking amendment of
the Rule 16 order, once it became apparent that she could not comply
with the order.

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Grant v. United States, No. 2:11-CV-00360 LKK, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15,

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2011), report and recommendation adopted, No. CIV-S-11-0360-LKK, 2012 WL 218959 (E.D.

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Cal. Jan. 23, 2012) (citing Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)).

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“Motions [to amend] are more often granted when the opposing party’s actions caused delay or

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when the need to amend arises from some unexpected or outside source.” Fed. Deposit Ins.
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Corp. As Receiver for Butte Cmty. Bank v. Ching, No. 2:13-CV-01710-KJM-EFB, 2016 WL

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1756913, at *2 (E.D. Cal. May 3, 2016) (citing Hood v. Hartford Life and Acc. Ins. Co.,

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567 F. Supp. 2d 1221, 1225-26 (E.D. Cal. 2008)).

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Additionally, a party may take up to ten depositions without leave of court or

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stipulation of the parties. Fed. R. Civ. P. 30(a)(2)(A)(i). “Generally, courts will not grant leave

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to expand the number of depositions until the moving party has exhausted the ten depositions

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permitted as of right under Rule 30(a)(2).” Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL

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4499976, at *1 (E.D. Cal. Sept. 27, 2011). But courts have departed from this “exhaustion rule”

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where the complexity of the case clearly warranted more than ten depositions. Id. (citing

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Del Campo v. Am. Corrective Counseling Servs., No. C-01-21151 JW (PVT), 2007 WL 3306496

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(N.D. Cal. Nov. 6, 2007)). The party seeking leave of court must make a “particularized

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showing” why the discovery is necessary under Rule 26. Id. (citing C&C Jewelry Mfg., Inc. v.

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West, 2011 WL 767839, at *1 (N.D. Cal. 2011)).

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III.

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DISCUSSION
A. Motion to Amend Complaint to Include Additional Defendant
The City’s seeks leave to file a First Amended Complaint to add the County of

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Placer (“County”) as an additional defendant. Mot. at 1. The City contends that around the time

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it initiated this lawsuit, “it did not know of any individual with knowledge of a specific

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arrangement between the City and the County, dating back to the 1950s and 60s, for County

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residents and businesses to use the landfill.” Mot. at 13. The City claims it later discovered the

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relationship between the City and the County “during the process of reviewing its own

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voluminous document production.” Id.

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The City must demonstrate “good cause” to justify adding the County as a new

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defendant under Rule 16(b). Mammoth, 975 F.2d at 608; St. Mary, 2007 WL 1100507, at *1.

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The court “focuses on the [City’s] diligence [in] seeking amendment.” St. Mary, 2007 WL

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1100507, at *1. Here, the City was not diligent in seeking leave to name the County as an

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additional defendant because it had a reasonable basis to know of its own relationship with the

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County before initiating this suit against the Federal Defendants. “The good cause standard
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typically will not be met where the party seeking to modify the scheduling order has been aware

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of the facts and theories supporting amendment since the inception of the action.” In re Western

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States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013). In its own

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complaint, the City alleged it opened the Dump to the County’s residents and the County’s public

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and private entities for waste disposal from 1952 through 1976. Compl. ¶ 11. The City’s own

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initial factual allegation shows the City had reason to suspect the County’s potential involvement

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with dumping hazardous waste into the Dump for at least a 24-year period.

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Additionally, the City’s lack of diligence is clear from the numerous filings in this

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litigation showing the City’s knowledge or notice about the County’s potential involvement with

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dumping hazardous waste. The first relevant filing was a joint status report filed October 6, 2016.

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ECF No. 8. The City disclosed its knowledge that County residents, County public entities and

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County private entities used the Dump to dispose of waste, and the United States put the City on

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notice of its claim that “the City collected and disposed of industrial waste and household garbage

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generated by numerous commercial entities, County and City entities . . . .” Id. at 2, 5. The

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United States further asserted “commercial entities, County and City entities, and residents of the

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City and surrounding area individually accessed the dump and disposed of industrial waste and

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household garbage on site.” Id. at 5. These statements in a joint status report show the City had a

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basis to suspect the County’s potential involvement with dumping hazardous waste into the Dump

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nearly a year before filing this motion. See, e.g., Ross v. Chipotle Mexican Grill, Inc.,

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No. 15cv1000-MMA (JLB), 2016 WL 9024884, at *3 (S.D. Cal. Mar. 1, 2016) (not diligent when

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plaintiff had “multiple occasions to discover information” about another possible defendant).

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Additionally, the City’s counsel admits in a declaration that “[t]he City informed

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the County, at least as early as January of 2017, that it possessed some limited information that

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the County or its residents contributed wastes to the [Dump], and that pending further

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investigation and discovery, it may be seeking to bring the County into the action.” Orrell Decl.

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¶ 41, ECF No 34-2. This filing shows the City had at least some information about the County or

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County residents contributing waste to the Dump and was expressly considering adding the

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County to this suit approximately eight months before filing the instant motion. This

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approximately eight-month delay exposes the City’s lack of diligence in seeking leave to amend.

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As a third example, even if the City was somehow not sufficiently aware of the

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County’s potential involvement in dumping hazardous waste, the City’s own two witnesses

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testified at depositions about the County’s potential involvement in environmental contamination.

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See ECF No. 22-6 (Ojeda Dep. at 29:6-8, 56:3-9); ECF No. 22-9 (Pasillas Dep. at 34:5-10, 35:1-

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4, 39:21-22, 106:19-22, 127:1-131:6). Both witnesses’ depositions occurred in February 2017.

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ECF No. 22-6 at 4 (Feb. 27, 2017); ECF No. 22-9 at 5 (Feb. 28, 2017). Specifically, Ojeda

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testified he believed people from Placer County had access to the dump site and Placer County

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paid a set fee for its residents to access the dump site. Ojeda Dep. at 56:3-9. Pasillas testified,

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“[t]here was household garbage, there was, of course, from the County different stuff, you know

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what I mean?” Pasillas Dep. at 35:3-4. Pasillas knew the County and City “had some kind of

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arrangement” for County residents to use the dump site. Id. at 106:19-22. Even if the City lacked

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awareness or notice before these depositions, the City heard its own witnesses relay substantial

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information about County residents and entities disposing of waste at the Dump seven months

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before filing this motion.

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The City was aware of the County’s involvement in waste disposal as shown by its

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own allegations in its initial complaint, a joint status report, its own counsel’s communications to

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the County, and at the latest by the deposition testimony of its own two witnesses designated as

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persons most knowledgeable about the types of waste disposed of at the Dump. The City had

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multiple reasons to be aware of the County’s involvement in waste disposal as early as May 27,

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2016, at the time it filed its complaint and as recently as February 27, 2017 at its own witness’s

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depositions. The City was not diligent when it waited at least seven months, if not well over a

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year, to seek leave to add the County as an additional defendant. Compare, e.g., Genentech

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Inc. v. Trustees of Univ. of Pennsylvania, No. 10-cv-02037-LHK, 2011 WL 4965638, at *1 (N.D.

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Cal. Sept. 16, 2011) (motion to amend not diligent when filed four months after plaintiff “knew

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about the facts supporting” a new legal theory), and Via Technologies, Inc. v. ASUS Computer

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Int’l, No. 14-cv-03586-BLF (HRL), 2017 WL 396172, at *1-4 (N.D. Cal. Jan. 30, 2017) (motion
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to amend not diligent when filed three months after a court order provided notice to plaintiff),

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with Kendrick v. Cty. of San Diego, 2017 WL 2692903, at *4 (S.D. Cal. June 22, 2017) (party

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was diligent when it filed motion to amend when “less than a month passed”); see also

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Experexchange, Inc. v. Doculex, Inc., No. C-08-3875 JCS, 2009 WL 3837275, at *29 (N.D. Cal.

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Nov. 16, 2009) (delay of two months after discovering new facts, after fully briefed summary

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judgment and without explanation for the delay did not meet good cause standard under Rule 16).

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The City argues its knowledge of the County’s use of the Dump does not equate to

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knowing about the County’s possible “arranger” liability. Mot. at 13; see 42 U.S.C. § 9607(a)(3)

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(providing one definition of a “covered person” or liable party under the Comprehensive

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Environmental Response, Compensation, and Liability Act as “any person who by contract,

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agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for

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transport for disposal or treatment, of hazardous substances . . . .”); see also Transportation

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Leasing Co. v. State of Cal. (CalTrans), 861 F. Supp. 931, 944-48 (C.D. Cal. 1993) (analyzing

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arranger liability of multiple parties). But the City admits that its “former waste hauler

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depositions also revealed that City waste trucks collected refuse from the County of Placer

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Corporation Yard, and disposed of those wastes at the [Dump],” which implicated the arranger

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liability the City claims it did not know about before those depositions. Id. The City does not

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justify how the approximate seven-month delay between the depositions and the filing of this

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motion shows diligence.

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Moreover, the City admits it had information about the County in its own

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possession by stating the City discovered its relationship with the County “[d]uring the process of

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reviewing its own voluminous document production.” Id. Courts have found parties not diligent

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when those parties possessed the documents containing the relevant information. Compare Ross,

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2016 WL 9024884, at *3 (not diligent when plaintiff possessed documents pointing to the proper

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defendants before suing), with Melingonis v. Rapid Capital Funding, L.L.C., No. 16cv490-WQH-

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KSC, 2017 WL 1550045, at *3 (S.D. Cal. May 1, 2017) (diligence found where plaintiff could

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practicably amend complaint only after receiving defendants’ written discovery responses). The

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City had access to its own documents throughout the course of this litigation, and yet the City
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delayed “a more in-depth review” of the documents’ contents to determine whether the County

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may be a possible defendant until “[a]fter production” across the “eleven months since the Rule

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26 conference” on September 13, 2016. Mot. at 13; ECF No. 8 at 1. The City does not claim it

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was ever prevented from accessing and reviewing its own documents but instead refers to “the

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massive file produced by both parties” and refers to the “81,000 pages of documents” the City

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produced. See Mot. at 13. The City does refer to a “substantial and time-consuming investigation

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to verify that the County had sufficient historic insurance assets to pay for its potential liability in

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this matter,” asserting “available insurance plays a significant role in the allocation of CERCLA

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liability” and citing NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682, 707-08 (7th Cir.

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2014). Id. at 12-13. Yet the Seventh Circuit there did not mention insurance at all when

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evaluating plaintiff’s arranger liability; the court instead considered insurance only in the context

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of ensuring a party would not “recover more than 100% of its share.” Compare NCR Corp., 768

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F.3d at 703-07, with id. at 707-08. The City’s insurance investigation does not explain why the

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City delayed sufficiently reviewing its documents to determine the County’s potential arranger

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liability in relation to the City’s allegations in its initial complaint, statements in a joint status

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report, its own counsel’s communications to the County, and at the latest by the deposition

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testimony of its own two witnesses.

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The City’s delay in reviewing its own documents highlights the City’s lack of

19

diligence in seeking leave to amend. Because the City has not shown it was diligent, the inquiry

20

ends. Mammoth, 975 F.2d at 609. The City’s request to file a First Amended Complaint to add

21

the County as an additional defendant is DENIED.4

22

B. Motion to Modify Scheduling Order and Allow Additional Depositions

23

The City also seeks to modify the scheduling order to extend the time allowed for

24

discovery and expert discovery by four months, and to increase the number of depositions

25

allowed in this action from ten to twenty, excluding expert depositions. Mot. at 1. At the outset,

26

the court notes the Federal Defendants stipulated to the four-month extension. Stip. at 2, ECF

27
28

4

The court recognizes that the City is likely to file a new action and seek relation or consolidation
of the new action to or with this one.
12

1

No. 39. The court granted the four-month extension in its Second Amended Scheduling Order,

2

ECF No. 42, and further clarified the dates in its Third Amended Scheduling Order. ECF No. 44.

3

Thus, the City’s request to amend the scheduling order by four months is DENIED as MOOT.

4

The remaining issue is the City’s request to increase the number of fact discovery

5

depositions from ten to twenty. Mot. at 1. The City requested these additional depositions after

6

the Federal Defendants disclosed the names of eleven witnesses in its disclosures. Mot. at 20. In

7

opposition, the Federal Defendants contend the City’s request is premature because the City had

8

only taken three depositions and had not exhausted all ten depositions allowed under the Federal

9

Rules. Opp’n at 16. Generally, federal district courts will not grant leave to expand the number

10

of depositions until the moving party has exhausted the ten depositions permitted as of right under

11

Rule 30(a)(2). Couch, 2011 WL 4499976, at *1. Courts refer to this rule, developed by federal

12

district courts, as the “exhaustion rule.” Here, the exhaustion rule acts as a bar to the City’s

13

requested additional depositions, and the City also has not exhibited the diligence necessary to

14

obtain its requested relief.

15

Courts approach the exhaustion rule differently. Some courts do not apply or

16

adopt the exhaustion rule. See, e.g., Hardin v. Wal-Mart Stores, Inc., No. 08-cv-0617 AWI

17

BAM, 2011 WL 11563217, at *3 (E.D. Cal. Dec. 2, 2011) (not applying exhaustion rule when

18

party only used nine depositions); Laryngeal Mask Co. Ltd. v. Ambu A/S, No. 3:07-cv-01988

19

DMS (NLS), 2009 WL 10672436, at *2 (S.D. Cal. July 17, 2009) (“[T]he Court respectfully

20

declines to adopt a rule requiring exhaustion of all allotted depositions prior to the filing of a

21

motion for leave to exceed the limits imposed.”). Some courts have departed from the exhaustion

22

rule where the complexity of the case clearly warranted more than ten depositions. Del Campo,

23

2007 WL 3306496, at *6 (deviating from exhaustion rule where case involved multiple plaintiffs,

24

multiple defendants and complex legal issues). Some courts evaluate requests for additional

25

depositions under Rule 26 without applying the exhaustion rule at all. See, e.g., Martinez v.

26

California, No. CV-F-07-996 AWI DLB, 2008 WL 5101359, at *2 (E.D. Cal. Dec. 3, 2008)

27

(“More than 10 depositions per side must be justified under the ‘benefits v. burdens’ approach

28

under Rule 26(b)(2)”); Kaseberg v. Conaco, LLC, No. 15-cv-01637-JLS (DHB), 2016 WL
13

1

8729927, at *2-3 (S.D. Cal. Aug. 19, 2016) (analyzing whether “good cause” required additional

2

depositions when party had not exhausted number of depositions allowed under Rule 26).

3

Here, there are multiple reasons to deviate from the exhaustion rule. First, the

4

Federal Rules of Civil Procedure do not require parties to exhaust the allotted depositions before

5

seeking leave for more. Fed. R. Civ. P. 30(a)(2)(A)(i); see also Hardin, 2011 WL 11563217, at

6

*3. Second, this litigation is complex. See, e.g., Laryngeal, 2009 WL 10672436, at *2. The City

7

has sued three federal defendants for liability under CERCLA, which has been aptly called an

8

inherently “complex statute with a maze-like structure and baffling language.” ASARCO, LLC v.

9

Celanese Chemical Co., 792 F.3d 1203, 1208 (9th Cir. 2015) (citing California ex. rel. Cal.

10

Dep’t. of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 663 (9th Cir. 2004))

11

(internal quotations omitted). The relevant events took place over fifty years ago, and key

12

witnesses are likely now either in poor-health or deceased; if still living they are located

13

throughout the United States. See Orrell Decl. ¶¶ 23, 29. The nature of the litigation justifies

14

departing from the exhaustion rule.

15

The Federal Defendants contend the City has not made a “particularized showing”

16

as to why the additional depositions are necessary. Opp’n at 16. But many courts have not relied

17

on a “particularized showing” standard, a standard developed by federal district courts, for a party

18

to obtain more than the default number of 10 depositions under the federal rules. Compare

19

Couch, 2011 WL 4499976, at *1, with Laryngeal, 2009 WL 10672436, at *4 (declining to adopt

20

particularized showing requirement because language of Rules and Advisory Committee Notes

21

does not require such a showing). Other courts have required only a Rule 26(b)(2) “benefits

22

versus burden approach” and sought to ensure “the discovery is not unreasonably cumulative or

23

duplicative.” Laryngeal, 2009 WL 10672436, at *4; see also Townsend v. Imperial Cty., No. 12-

24

cv-2739-WQH (PCL), 2014 WL 2090700, at *3 (S.D. Cal. May 16, 2014) (omitting discussion of

25

need for “particularized showing”).

26

Regardless, the City has made a “particularized showing” for expanding the

27

number of depositions consistent with Rule 26. The City sought specific information on how

28

certain solvent-soaked rags from the missile launch facilities were ultimately disposed of and the
14

1

different types of solvents used. Mot. at 8; Reply at 10. The Federal Defendants have not

2

provided this information, asserting instead their initial disclosure witnesses had no responsibility

3

for disposal of wastes generated at the missile launch facilities. Mot. at 8. The City contends it

4

needs to depose “as many of these initial disclosure witnesses as possible” to “avoid any surprise

5

testimony at trial.” Id. The City seeks to depose “retired Air Force personnel that actually

6

worked at the [missile launch facility], with sufficient regularity to potentially have relevant

7

information about the types of solvents used, the wastes generated as a result, and [to have]

8

potentially [seen] how those wastes were disposed of,” including if any witness “has specific

9

knowledge” about “the ultimate disposal of the solvent-soaked rags and cloths used at the”

10

missile launch facility. Id. (citing Orrell Decl. ¶ 27). Because the Federal Defendants have not

11

provided the answers to the City’s questions in document production or discovery responses, the

12

depositions the City seeks cannot be considered “unreasonably cumulative or duplicative.”

13

Laryngeal, 2009 WL 10672436, at *4.

14

Moreover, there is no indication the depositions the City seeks were unreasonably

15

duplicative and cumulative, even if there is some minor overlapping testimony. See, e.g., Couch,

16

2011 WL 4499976, at *2. While the City has had the opportunity to pursue the same discovery

17

by less intrusive means, the court finds that “oral testimony likely can prove these allegations and

18

that other less-intrusive discovery devices may be ineffective.” Id.

19

The Federal Defendants contend they “should not be prejudiced by an onslaught of

20

depositions . . . because the City failed to conduct the ten depositions allowed under the [f]ederal

21

[r]ules during the time permitted by the [c]ourt.” Opp’n at 17. But because the City likely would

22

bear the costs of any additional depositions, including subpoenas, court reporters and transcripts,

23

the burden of the additional depositions would not outweigh its benefit for fact discovery. See

24

Couch, 2011 WL 4499976, at *2. Additionally, the Federal Defendants “did not place before the

25

[c]ourt specific evidence demonstrating that the burden or expense outweighs [the additional

26

depositions’] likely benefit.” Mintz v. Mark Bartelstein & Assocs., Inc., No. CV 12-3055 SVW

27

(SSX), 2012 WL 12886492, at *3 (C.D. Cal. Sept. 14, 2012). The court therefore finds any

28

burden or expense of the additional depositions is not “disproportionate to the amount in
15

1

controversy or the complexity of the claims,” id., alleged to be “at least $5 million at stake in this

2

action.” Reply at 10.

3

But the City has not identified sufficient persons to justify raising the total number

4

of depositions to twenty. The court therefore does not have “information by which to evaluate

5

whether [the requested twenty] depositions would be cumulative, duplicative, burdensome, or

6

relevant.” Kaseberg, 2016 WL 8729927, at *4. The City has identified eleven witnesses

7

disclosed by the Federal Defendants who were not the subjects of the City’s three already

8

completed depositions. See Orrell Decl. ¶¶ 5-6; Mot. at 20. The City’s motion to expand the

9

number of depositions is therefore GRANTED IN PART, expanding the City’s permitted

10

depositions to a total of fourteen (14) depositions. The City therefore has seven (7) additional

11

depositions remaining. See ECF No. 57 (“Since the October [2017] Third Amendment to the

12

Scheduling Order, the City has taken four depositions.”). The Court permits the City forty-five

13

(45) days to complete these depositions, and the City will bear any additional costs.

14

This order does not alter any other portions of the initial scheduling order, ECF

15

No. 11, or dates listed in the fourth amendment to the initial scheduling order, ECF No. 58. In the

16

next fourteen (14) days, in a joint filing, the parties shall propose any further modification to the

17

scheduling order needed as a result of this order.

18

IV.

CONCLUSION

19

For the above reasons, the City’s motion is GRANTED IN PART. Specifically, the

20

court permits the City forty-five (45) days to take up to a total of 14 depositions. The remainder of

21

the City’s motion is DENIED, including the City’s request for leave to amend its complaint to name

22

the County of Placer as an additional defendant and the City’s request for leave to modify the

23

scheduling order in other respects, as explained above.

24
25

In the next fourteen (14) days in a joint filing, the parties shall propose any further
modification to the scheduling order needed as a result of this order.

26

This resolves ECF No. 34.

27

IT IS SO ORDERED.

28

DATED: August 15, 2018.
16

UNITED STATES DISTRICT JUDGE