Vigil Rogelio et al v. Con-Way Freight, Inc.

Filing 123

ORDER REGARDING REQUEST FOR RECONSIDERATION OF ORDER DENYING MOTION FOR RELIEF FROM NON-DISPOSITIVE ORDER. Signed by Judge Jeffrey S. White on 12/15/15. (jjoS, COURT STAFF) (Filed on 12/15/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE ALBERTO FONSECA PINA, and
ROGELIO VIGIL, et al.,

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Plaintiffs,
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v.
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CON-WAY FREIGHT, INC.

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Case No. 10-cv-00100-JSW
ORDER REGARDING REQUEST FOR
RECONSIDERATION OF ORDER
DENYING MOTION FOR RELIEF
FROM NON-DISPOSITIVE ORDER
Re: Docket No. 122

United States District Court
Northern District of California

Defendant.
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On December 9, 2015, the Court issued an Order denying Con-Way, Inc.’s motion for

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relief from non-dispositive pretrial order. The Court denied the motion, in part, on the basis that it

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had not been timely filed. Con-Way moves the Court to reconsider its ruling that its motion for

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relief was untimely.1

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Con-Way argues that Federal Rule of Civil Procedure 72(a) sets a deadline of fourteen

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days after service of an Order for a party to file objections. Because the deadline is based on

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service of a document, rather than the filing of a document, Rule 6(d) is applicable. Rule 6(d)

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provides that “[w]hen a party may or must act within a specified time after service and services is

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made under” Rule 5(b)(2)(E), i.e. electronic service, “3 days are added after the period would

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otherwise expire[.]” Thus, according to Con-Way, its motion was timely, because it was entitled

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to the additional three days provided by Rule 6(d). Con-Way’s argument appears to have merit.

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See, e.g., Powertech Technology, Inc. v. Tessera, Inc., No. 10-cv-945-CW, 2012 WL 1746858, at

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*2 (N.D. Cal. May 16, 2012) (concluding motion to strike was timely filed and noting that “while

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Under Northern District Civil Local Rule 7-9, Con-Way should have filed a motion for
leave to file a motion for reconsideration, rather than simply filing its motion for reconsideration.
The Court shall not deny its motion for failure to comply with this procedural rule.

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Rule 6(d) was created to allow additional time for the mailing of documents and is anachronistic

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in the context of e-filing,” rule still applied); compare N.D. Civ. L.R. 7-2(a), N.D. Civ. L.R. 7-

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3(a), and N.D. Civ. L.R. 7-3(c) (each noting where Rule 6(d) does not apply and exceptions

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thereto) with N.D. Civ. L.R. 72-2 and N.D. Civ. L.R. 72-3 (making no reference to Rule 6(d)).

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Accordingly, based on the plain language of Federal Rules of Civil Procedure 72(a) and

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6(d), and because the Court has not found any Ninth Circuit authority that would suggest there is

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an exception to Rule 6(d) for Orders served by the Court, rather than papers served by parties, the

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Court shall reconsider its ruling on timeliness.

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That decision does not alter the Court’s ruling on the substance of the motion. The District
Court may modify or set aside any portion of a magistrate’s ruling on non-dispositive pre-trial

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United States District Court
Northern District of California

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motions found to be “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a); see also, e.g.,

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Grimes v. City and County of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991). A ruling is

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clearly erroneous if the reviewing court, after considering the evidence, is left with the “definite

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and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333

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U.S. 364, 395 (1948).

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In its previous Order, the Court ruled that
[e]ven if the motion were timely, the Court would still deny it. First,
in support of its arguments that compliance with the Order would be
unduly burdensome, Con-Way relies on facts that were not – but
presumably could have – been presented to Judge Vadas. With
respect to Con-Ways [sic] arguments regarding privacy, the
documents are to be produced pursuant to a protective order. The
Court concludes that Judge Vadas’ decision is neither clearly
erroneous nor contrary to law.
(Docket No. 121, Order Denying Motion for Relief at 2 n.1.)

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Con-Way argued to Judge Vadas that it would be unduly burdensome to produce the

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documents, because it would take over a thousand person hours to undertake the task. Judge

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Vadas ordered Con-Way to make the files available for inspection and copying at a centralized

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location. Con-Way then argued to this Court that it should overturn Judge Vadas’ ruling on this

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point, because the “files are hard copies and are scattered throughout the State of California and

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the United States,” and some are located in third-party storage and will require a substantial per2

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file cost to retri
e
ieve them. (Motion for Relief at 1:2
(
20-26.) If, a Con-Way asserts, Judg Vadas
as
ge

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“un
nderestimate the burden placed upo Con-Way the Court cannot faul Judge Vad for failing
ed
n
on
y,”
t
lt
das
g

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to consider facts that were not presente to him. H
c
ed
However, eve when the Court consi
en
iders those

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fac it still concludes that Judge Vada ruling wa neither cle
cts,
t
as’
as
early erroneo nor cont
ous
trary to law.

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Accord
dingly, althou the Cour GRANTS Con-Way’s request to r
ugh
rt
S
s
reconsider th ruling on
he

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tim
meliness, it st DENIES Con-Way’s motion for relief Judge Vadas’ Ord
till
s
e
der. The par
rties shall

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me and confe and agree to a specific date for the production of the perso
eet
er
c
e
n
onnel files, w
which shall

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be produced su
ubject to a jo stipulated protective order.
oint

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United States District Court
Northern District of California

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IT IS SO ORDER
S
RED.
Da
ated: Decemb 15, 2015
ber
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___
__________
___________
__________
________
JEF
FFREY S. W
WHITE
Un
nited States D
District Judg
ge

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