Byard et al v. City and County of San Francisco et al

Filing 99

ORDER REGARDING PLAINTIFFS' INSCRUTABLE RECORD ON SUMMARY JUDGMENT, Set/Reset Deadlines as to 65 MOTION for Summary Judgment . Responses due by 4/10/2017 at NOON. Replies due by 4/13/2017 at NOON. Motion Hearing set for 4/26/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Signed by Judge Alsup on 4/6/17. (whalc1, COURT STAFF) (Filed on 4/6/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ALAN BYARD, et al., 11 For the Northern District of California United States District Court 10 12 13 14 15 Plaintiffs, No. C 16-00691 WHA v. THE CITY AND COUNTY OF SAN FRANCISCO, et al., ORDER REGARDING PLAINTIFFS’ INSCRUTABLE RECORD ON SUMMARY JUDGMENT Defendants. / 16 17 Defendants moved for summary judgment on March 7 (Dkt. No. 65). On March 16 an 18 order granted a stipulated request to continue the deadline for plaintiffs’ response from 19 March 21 to March 23 (Dkt. No. 86). Plaintiffs requested this relief (to which defendants 20 acquiesced) “due to the large number and complexity of the issues, and because Plaintiffs’ 21 counsel has the flu, with symptoms including fever and migraines” (Dkt. No. 85). The 22 stipulation provided no sworn evidence of plaintiffs’ counsel’s illness, but it stated “[p]laintiffs 23 assert that granting two extra days would allow them to prepare a more proper response” (ibid.). 24 On March 22, plaintiffs sought to enlarge the page limit on their opposition from 25 twenty-five to thirty pages (Dkt. No. 88). An order enlarged the page limit to twenty-eight 26 pages (Dkt. No. 89). 27 28 On March 23, plaintiffs filed their opposition (Dkt. No. 91). The brief in support was thirty pages long. An amended brief reduced its length to 28 pages (Dkt. No. 93). 1 The record submitted in support of plaintiffs’ opposition was incomprehensible. 2 Although most declarations in support of a brief identify and authenticate each exhibit appended 3 thereto, the declaration of Daniel Bakondi, counsel for plaintiffs, simply stated, “[a]ttached to 4 this declaration is the Plaintiff’s evidence in opposition that I was able to submit prior to the 5 deadline to file, as described in my complaint. There is additional evidence that I request time 6 to submit” (Dkt. No. 91-1, Bakondi Decl. ¶ 5). Attorney Bakondi explained that he had been 7 sick and that he had “been unable to complete [his] Opposition or shorten it as ordered or 8 submit all the evidence [he] ha[s] due to [his] running out of time” (id. ¶ 2). He offered no 9 explanation of why the extension that had already been granted due to his illness was insufficient. He never filed a formal motion requesting an extension. 11 For the Northern District of California United States District Court 10 He then filed five additional documents. On the Court’s electronic filing system, four 12 were labeled “Exhibit attach,” and another was labeled “Exhibit” (Dkt. Nos. 91-2–91-6). One 13 document was 213 pages long, and appeared to contain a multitude of different documents. 14 There was no discernible way to identify where one document ended and the next began, such 15 as with a cover page at the start of each document. Worse, there was no way to determine 16 which document was which. (Some documents had bates stamps or exhibit stamps from 17 depositions, but those references were useless.) The other documents appended in docket entry 18 91 appeared to be individual transcripts, but Attorney Bakondi’s declaration never identified or 19 authenticated them. 20 In addition to the exhibits submitted with Attorney Bakondi’s declaration was a separate 21 filing, filed at 12:34 a.m. on March 24 (after the deadline), labeled “Exhibits” (Dkt. No. 92). 22 The primary document in that docket entry is an unlabeled 710-page document that included a 23 collection of hundreds of different documents. Again, there was no discernible way to identify 24 where one document ended and the next began or which document was which. The six 25 documents appended to that document entry were also each simply labeled “Exhibit.” They 26 varied in length: 1 page, 17 pages, 56 pages, 83 pages, 300 pages, and 285 pages. As with the 27 other exhibits already discussed, these additional documents were unlabeled, undifferentiated, 28 and unauthenticated. 2 1 Plaintiffs’ brief exacerbated the issue. Most briefs cite exhibits by their title, and then 2 identifying either the docket entry and page number or the exhibit number and the name of the 3 declarant authenticating the document. Our plaintiffs’ counsel failed to do so. Instead, they 4 simply referred to documents by some idiosyncratic shorthand without providing a key. Some 5 examples of citations to the record will suffice: “Police Commission hearing 10.17.2007” (Pls.’ 6 Amd. Opp. at 14), “Chan’s rejections, 25 appl.” (ibid.), “Contoller’s figures, Security 7 Contracts” (id. at 15), “History” (id. at 17, 21), “Union Square CBD, Yerba Buena, Castro” (id. 8 at 18), “3 beats doc, Depos, Decl.” (id. at 21). To be clear, these citation issues existed in the 9 thirty-page version of plaintiffs’ brief as well as the amended twenty-eight page version. Plaintiffs’ counsel did not timely file chambers copy of their massive and unintelligible 11 For the Northern District of California United States District Court 10 record, in violation of Civil Local Rule 5-1(e)(7). An order requested that plaintiffs’ counsel 12 provide chambers copies “organized with tabs delineating and identifying each separate 13 exhibit” (Dkt. No. 97). Plaintiffs’ counsel lodged chambers copies and filed a supplemental 14 declaration identifying each exhibit by the number on the tab separating the documents in the 15 chambers copies (Dkt. No. 98). 16 Upon review of that declaration, it became apparent that plaintiffs’ counsel’s sloppiness 17 had completely deprived defendants of any meaningful opportunity to respond to the factual 18 record, and imposed on the Court the Herculean task of making sense of the record. “The 19 district court need not examine the entire file for evidence establishing a genuine issue of fact, 20 where the evidence is not set forth in the opposing papers with adequate references so that it 21 could conveniently be found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 22 1031 (9th Cir. 2001). 23 Here, plaintiffs’ counsel has served us reams of purported evidence, but offered no way 24 to decode the mess. The supplemental declaration and organized chambers copies provide 25 some assistance, but there remains no way to correlate references in plaintiffs’ brief to the 26 documents. Moreover, it does not appear the organized chambers copies have been provided to 27 defense counsel, so now, more than one week after they filed their reply, there is still no way 28 defense counsel could feasibly address the evidence. 3 1 Attorney Bakondi’s “illness” can only explain a small measure of the egregious mess 2 before us (and to that extent, his failure to request an adequate extension is to blame). The fault 3 for this problem lies with Attorney Bakondi’s work product, not with the plaintiffs themselves. 4 The Court is mindful that many of our plaintiffs are elderly (and, indeed, some have 5 deceased), and they deserve their day in court. But the defendants also have the right to a fair 6 summary judgment proceeding, and plaintiffs’ counsel deprived them of that. 7 Accordingly, we will adopt the following procedure: 8 • By FRIDAY APRIL 7 AT 5:00 P.M., plaintiffs’ counsel will re-file all of the evidence already provided, with each document filed as a separate exhibit, labeled by number corresponding to the “tabs” in Attorney Bakondi’s supplemental declaration. A printed courtesy copy of this filing, which should be identical to the chambers copies lodged yesterday, shall be served on defense counsel by MONDAY APRIL 10 AT 5:00 P.M. • By MONDAY APRIL 10 AT NOON, plaintiffs’ counsel may file a second amended opposition to defendants’ motion for summary judgment. This opposition may not raise any new arguments or cite any evidence not already cited or filed via ECF, but it must reformulate each of the citations to identify the following: The name of the declarant purporting to authenticate the document and the docket number of that declaration, a descriptive title of the document, the “tab” number of the document as identified in Attorney Bakondi’s supplemental declaration, the docket number of the exhibit in the new filing set forth above, and the page number(s) of that document purporting to support the factual assertion in the brief. Plaintiffs’ brief SHALL NOT EXCEED THIRTY PAGES. • Plaintiffs may not file any new evidence. However, a preliminary review of the record filed by plaintiffs reveals that many documents are not properly authenticated. Thus, this order will allow plaintiffs to further supplement the record with proper sworn authentication of the evidence (to which, of course, defendants may object in their reply). Any new declarations must identify, unambiguously, the documents purported to be authenticated. • In conjunction with plaintiffs’ new opposition, Attorney Bakondi shall file a sworn declaration averring, on penalty of perjury, that no new evidence has been filed or cited in plaintiffs’ new opposition. • Defendants may reply to this new opposition by THURSDAY APRIL 13 AT NOON. • Defense counsel shall maintain a complete and adequate accounting of all work done as a result of the foregoing procedure. By MONDAY APRIL 17 AT NOON, they shall state the amount of attorney’s fees and costs incurred supported by a sworn declaration 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 setting forth the hours worked and defense counsel’s rate for that work (or, a reasonable rate, if defense counsel do not maintain a schedule of rates). 2 3 • Plaintiffs’ counsel shall pay the amount of the fees and costs as a sanction for causing this mess by THURSDAY APRIL 20 AT NOON. This case will not move forward until the fees and costs are paid. • Assuming fees and costs are promptly paid, we will hear oral argument on defendants’ motion for summary judgment on WEDNESDAY APRIL 26 AT 8:00 A.M. • 9 Except for deadlines before Judge Ryu, all other dates, including the pretrial conference, trial date, and related deadlines are VACATED. New dates will be set at the hearing on summary judgment, provided, as stated, that plaintiffs’ counsel has paid the sanctions ordered above. 10 This order reiterates this is a problem of plaintiffs’ counsel’s making only, not his 4 5 6 7 11 For the Northern District of California United States District Court 8 clients’. If the sanctions ordered above are not timely paid, the Court will consider dismissing 12 the action for lack of prosecution. 13 14 IT IS SO ORDERED. 15 16 Dated: April 6, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 5

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