ColfaxNet, LLC v. City of Colfax

Filing 37

MEMORANDUM AND ORDER Re: Plaintiff's Objections to Discovery Order of Magistrate Judge Delaney Dated 8/19/2020, signed by Senior Judge William B. Shubb on 9/14/2020. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COLFAXNET, LLC,
Plaintiff,

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No.2:19-cv-2167 WBS-CKD

v.

MEMORANDUM AND ORDER RE:
PLAINTIFF’S OBJECTIONS TO
DISCOVERY ORDER OF MAGISTRATE
JUDGE DELANEY DATED AUGUST
19,2020

CITY OF COLFAX,
Defendant.

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Plaintiff ColfaxNet, LLC (“Plaintiff”), brought this

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action against Defendant City of Colfax (“Defendant”) alleging

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violations of the Federal Telecommunications Act (“FTA”), 47

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U.S.C. § 332(c)(7)(B) and 47 U.S.C. § 1455, and its implementing

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regulations codified at 47 C.F.R. § 1600.

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declaratory and injunctive relief in the form of a court order

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stating that the defendant violated the FCA and mandating that

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the defendant issue the requisite permits for plaintiff to

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proceed with the placement, construction, and/or modification of

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the ColfaxNet wireless service facilities proposed in the
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Plaintiff seeks

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applications.

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additionally requests that the court hear and decide this action

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on an expedited basis pursuant to 47 U.S.C. § 332(c)(7)(B)(v).1

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Before the court is the “Objection of Plaintiff ColfaxNet, LLC to

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Discovery Order of Magistrate Judge dated August 19, 2020.”

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(“Objections”) (Docket No. 31.)

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I.

Plaintiff

Factual and Procedural Background

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(See generally Compl. (Docket No. 1).)

On October 25, 2019, plaintiff ColfaxNet, LLC,
(“Plaintiff”) brought this action against defendant City of

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Colfax (“Defendant”) alleging violations of the Federal

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Telecommunications Act (“FTA”), 47 U.S.C. § 332(c)(7)(B) and 47

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U.S.C. § 1455, and its implementing regulations codified at 47

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C.F.R. § 1600.

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the defendant: (i) did not act on plaintiff’s request to modify

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an existing wireless communication facility within a reasonable

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period of time, (ii) failed to draft a written denial of the

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plaintiff’s request supported by a written record, (iii)

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improperly considered radio frequency emissions in issuing the

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denial of plaintiff’s request, (iv) unlawfully prohibited

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plaintiff from providing service, and (v) unlawfully denied

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plaintiff’s eligible facilities request. (See generally Compl.

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(Docket No. 1).)

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Plaintiff alleges in its operative complaint that

The parties filed a Rule 26(f) discovery plan on
February 18, 2020, which contemplated discovery cut-offs and

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Plaintiff has not stated what time frame is required by
the statute and has not cited any cases explaining what
“expedited review” means or the timeline anticipated in these
cases. Defendant does not appear to have even acknowledged this
requirement.
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limitations.

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to 20 each of Interrogatories, Requests for Admission, and

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Requests for Production” and to “take up to eight percipient

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witness depositions, including Party depositions, each.”

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Joint Status Report at 3) (Docket No. 7.)

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that the matter should be solely decided on the administrative

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record.

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Specifically, the parties expected to “propound up

(See

The plan did not state

(See generally Joint Status Report.)
Defendant served plaintiff with requests for

written discovery on April 16, 2020.

(Joint Statement Re:

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Discovery Disagreement at 2 (“Joint Statement”) (Docket No. 25.)

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Defendant served plaintiff with notices of deposition for the two

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principals, Corey and Lynele Juchau, on May 6, 2020.

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(Declaration of Mark Epstein in Support of Mot. to Compel at ¶ 4

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(“Epstein Decl.”) (Docket No. 16).)

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extensions from defendant to respond to the written discovery,

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plaintiff objected to each discovery request made by defendant.

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(Id.)

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substantially similar statement: “To the extent the request seeks

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information beyond the administrative record that is subject to

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review in this case, it is overbroad, unduly burdensome, and has

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no relevance to the claims or defenses raised.”

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id. at Ex. K–N.)

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that they wished to put off the depositions because the motion

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for summary judgment would be dispositive and resolve the case

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without the need for those depositions.

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After receiving two courtesy

Nearly every objection included the following, or

(See generally

Plaintiff’s counsel also informed defendant

(Id. at ¶ 9).

Defendant filed a Motion to Compel Plaintiff’s

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Responses to Written Discovery, Production of Documents, and

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Appearance at Deposition on July 10, 2020.
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(“Mot. to Compel”)

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(Docket No. 15).

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12, 2020 before Magistrate Judge Delaney.

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filed for summary judgment on August 3, 2020, more than three

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weeks after defendant moved to compel discovery.

(See Pl.’s Mem.

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in Supp. of Summ. J (“MSJ”) (Docket No. 22-1).)

The parties

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submitted their Joint Statement regarding the discovery dispute

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only two days later, on August 5, 2020.

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Statement.)

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The hearing on that motion was set for August
(See id.)

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Plaintiff

(See generally Joint

On August 19, 2020, Judge Delaney issued an order

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granting defendant’s Motion to Compel Discovery Responses and

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ordering Plaintiff to respond to defendant’s written discovery

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within 30 days and present ColfaxNet’s principals for deposition

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within 90 days.

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Responses at 10 (“Order”) (Docket No. 27).)

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awarded defendant’s attorney’s fees, ruling that “plaintiff

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unreasonably and without justification refused to respond to

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discovery in this matter.”

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requested reconsideration of Judge Delaney’s order on September

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2, 2020.

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request on September 9, 2020.

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Objection/ Request for Reconsideration of Discovery Order (“Reply

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to Objections”) (Docket No. 34).)

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II.

(Order Granting Mot. to Compel Discovery
Judge Delaney

(See Order at 9.)

(See generally Objections.)

Plaintiff

Defendant replied to that

(See Df.’s Opp. to Pl.’s

Discussion

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A party seeking reconsideration of the Magistrate

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Plaintiff ColfaxNet has not moved for summary judgment
on two counts in their complaint (denial not based on substantial
evidence and effective prohibition of wireless service.) (See
Reply Brief of Plaintiff ColfaxNet, LLC in Support of Motion for
Summary Judgment at 2) (Docket No. 30).)
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judge’s ruling shall file a request for reconsideration by a

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Judge and serve the Magistrate Judge and all parties.

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R. 303(c).

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or part thereof, objected to and the basis for that objection.

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Id.

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requests is the ‘clearly erroneous or contrary to law’ standard

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set forth in 28 U.S.C. § 636(b)(1)(A).” See Loc. R. 303(f); See

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Fed. R. Civ. P. 72(a).

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See Loc.

Such request shall specifically designate the ruling,

“The standard that the assigned Judge shall use in all such

Federal Rule of Civil Procedure 26(b)(1) states that

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unless otherwise limited by court order, “parties may obtain

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discovery regarding any nonprivileged matter that is relevant to

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any party’s claim or defense and proportional to the needs of

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the case.” Fed. R. Civ. P. 26(b)(1).

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scope of discovery “need not be admissible in evidence to be

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discoverable.”

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to manage discovery.

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606, 616 (9th Cir. 2012); Survivor Media, Inc. v. Survivor

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Prods., 406 F.3d 625, 635 (9th Cir. 2005).

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Id.

Information within the

The Court is vested with broad discretion
See Hunt v. County of Orange, 672 F.3d

First, plaintiff claims that the Magistrate Judge

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focused solely on ColfaxNet’s contentions that no discovery was

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necessary or appropriate due to the pending motion for summary

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judgment and that defendant’s discovery requests were improper

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because they sought information beyond the administrative record.

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(See Objections at 3.)

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the Magistrate Judge did not consider or require defendant to

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demonstrate relevance, proportionality, or any of the other

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factors governing the permissible scope of the discovery requests

Plaintiff argues that because of this,

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under Federal Rule of Civil Procedure 26(b)(1).3

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Defendant contends that its discovery requests fall well within

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the proper scope of Federal Rule of Civil Procedure 26(b)(1)

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because they seek to compel plaintiff to produce the basic and

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non-privileged information upon which it bases its claims against

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defendant in this case.

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(See id.)

(See Reply to Objections at 3.)

Plaintiff’s argument is without merit because Judge

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Delaney specifically stated that “the parties can assume that the

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court has determined that any objection not discussed in this

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order has been overruled because it is too general or otherwise

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meritless.”

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Magistrate Judge did not specifically detail whether each request

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satisfied each element of Rule 26(b)(1) does not indicate that

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she disregarded plaintiff’s arguments as to the relevance of the

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discovery requests or whether such requests were unduly

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burdensome under Rule 26(b)(1).

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(See Order at 3.)

Thus, the fact that the

Plaintiff additionally objects to the Magistrate

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Judge’s Order on the basis that defendant has not cited to any

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piece of discovery relevant to any of the four counts moved for

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on the Motion for Summary Judgment. (See Objections at 3–4.)

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Although this issue is relevant to the question of whether the

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Although plaintiff criticizes the Magistrate Judge for
allegedly not ruling as to whether each of defendant’s discovery
requests were proportional to the needs of this case, in the
entire Joint Statement submitted to the Magistrate Judge, which
totals 131 pages, plaintiff never even mentions the word
proportional in their objections to defendant’s requests.
Instead, plaintiff repeats variations of their boilerplate
objection that to the extent that information is sought beyond
the administrative record it is “overbroad, unduly burdensome and
has no relevance to the claims or defenses raised.” (See
generally Joint Statement.)
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court’s ruling on the pending summary judgment motion should be

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postponed until defendant receives discovery pursuant to Federal

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Rule of Civil Procedure 56(d), it has no bearing on the issue

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here.4

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“regarding any nonprivileged matter that is relevant to any

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party’s claim or defense.”

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The defendant is clearly entitled to take discovery

Fed. R. Civ. P. 26(b)(1).

Finally, plaintiff objects to the Magistrate Judge’s

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award of attorney’s fees to defendant.

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Civil Procedure 37(a)(5)(A), if a motion to compel is granted,

Under Federal Rule of

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the court must require the party whose conduct occasioned the

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motion “to pay the movant’s reasonable expenses incurred in

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making the motion, including attorney’s fees.”

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37(a)(5)(A).

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the movant filed the motion before attempting
in good faith to obtain the disclosure or
discovery without court action;

(ii)

the opposing party’s nondisclosure, response,
or objection was substantially justified; or

(iii)

other circumstances make an award of expenses
unjust.

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The court must not award attorney’s fees if:

(i)

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Fed. R. Civ. P.

Fed. R. Civ. P. 37(a)(5)(A).
Moreover, plaintiff’s claim that the discovery sought
does not touch on any of the issues which are the subject of the
motion for summary judgment lacks support. As just one example,
plaintiff claims that the city failed to approve the ColfaxNet
eligible facilities request in violation of 47 U.S.C. § 1455 and
47 C.F.R. §1.6100. (MSJ at 11.) One of defendant’s defenses is
that ColfaxNet’s proposed tower was not an “eligible facilities
request.” (Def.’s Mem. in Opp. of Mot. for Summ. J. at 18)
(“Opp. to MSJ” (Docket No. 28).) Defendant’s Interrogatory No.
11 goes directly to this request and defense and seeks to
discover the facts upon which plaintiff bases this assertion.
(See Joint Statement at 37.)
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None of these exceptions apply here.

First, the

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defendant attempted to resolve the discovery dispute before

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bringing the matter to the court.

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2020 via Zoom to meet and confer and resolve all pending

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discovery disputes.

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plaintiff’s objections and response to defendant’s discovery

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requests were not substantially justified.

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points out, “[p]laintiff was afforded multiple opportunities to

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inform defendant of its position, but instead decided to rest on

The parties met on June 4,

(See Epstein Decl. at ¶ 16.)

Second,

As Judge Delaney

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its boiler-plate objections.”

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boilerplate responses and objections by the plaintiff were

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inadequate and deficient seems evident to even the plaintiff, as

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they felt the need to include expanded rationales for their

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objections in their Objections to Judge Delaney’s Order.

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Objections at 9–22.)

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that make an award of expenses unjust.

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they are a very small company, owned and managed by a husband and

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wife.

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the discovery that they previously agreed to in a timely and

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adequate fashion, the expense of these motions could have been

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avoided.

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(See Order at 9.)

That these

(See

Third, there are no other circumstances

(See Objections at 7.)

Plaintiff points out that

However, had plaintiff produced

Accordingly, because plaintiff has not demonstrated

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that the Magistrate Judge’s decision to compel plaintiff to

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comply with defendant’s discovery requests was “clearly

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erroneous” or “contrary to law” as required under Local Rule

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303(g) and Federal Rule of Civil Procedure 72(a), plaintiff’s

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request for reconsideration of the Magistrate Judge’s order is

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hereby DENIED.

Plaintiff is ORDERED to comply with the
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Magistrate Judge’s Order (Docket No. 27) within 30 days from the

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date of this Order.

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Dated:

September 14, 2020

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