United States of America, ex rel Christopher Kaes et al-v- Dogwood Creek Construction, LLC, et al

Filing 23

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 20 Motion to Appear by Telephone, denying 21 request construed as motion to hold conference in camera, denying 22 request construed as motion to stay further proceedings. (hrllc1, COURT STAFF) (Filed on 9/10/2015)

E-Filed 9/10/2015

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA, EX REL
CHRISTOPHER KAES, et al.,
Plaintiffs,

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
APPEAR BY TELEPHONE

v.

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DOGWOOD CREEK CONSTRUCTION,
LLC, et al.,
Defendants.

United States District Court
Northern District of California

Case No. 12-cv-02887-HRL

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ORDER DENYING MOTION TO STAY
FURTHER PROCEEDINGS

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ORDER DENYING MOTION TO HOLD
SETTLEMENT CONFERENCE IN
CAMERA

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Re: Dkt. Nos. 20, 21, 22

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The United States declined to intervene in this case on March 30, 2015. Dkt. No. 15.

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Plaintiffs Kaes Enterprises, LLC and Christopher Kaes did not serve any defendants or consent to

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magistrate jurisdiction during the following five months. The court set a status conference for

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September 15, 2015 and ordered submission of a status report by September 10, 2015. Dkt. No.

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18.

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Plaintiffs consented to magistrate jurisdiction and filed a motion to allow their lawyers to

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appear by telephone at the status conference. Dkt. Nos. 19, 20. Plaintiffs also filed a declaration

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by lawyer Bruce P. Babbitt in support of the motion to appear by telephone; this declaration

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includes a request to hold the status conference in camera and to seal records of the conference

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“for reasons that will be explained at the status conference.” Dkt. No. 21. Finally, Plaintiffs filed

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a status report, which requests that the court stay further proceedings until November 1, 2015.

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Dkt. No. 22. Mr. Kaes requests the stay because of medical issues, uncertainty about whether he

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has the “resources and ability” to prosecute the case, and a desire to “hopefully obtain some of the

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investigation materials generated by the United States and the Office of the Inspector General

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during their investigation” of this case. Dkt. No. 22.
The court construes the request to hold the conference in camera and the request to stay as
motions; the court now resolves the three motions before the court.
Motion to Hold In-Camera Conference and Seal Records of Conference

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Plaintiffs declined to state any justification for holding the status conference in camera and

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then sealing the record of the conference. Plaintiffs instead base their request entirely on “reasons

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that will be explained at the status conference.” Dkt. No. 21. The court denies Plaintiffs’ request

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because Plaintiffs have not provided any fact or law to justify it.

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Motion to Appear by Telephone
The motion to appear by telephone does not clearly state why good cause might exist to

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United States District Court
Northern District of California

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permit a telephonic appearance. Still, the court notes that pro-hac-vice lead counsel Bruce P.

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Babbitt would likely need to travel from Seattle, Washington to San Jose, California to appear in

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person. The court finds good cause to permit Mr. Babbitt to appear by telephone. The court finds

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no good cause, however, to permit local co-counsel Weldon S. Wood to appear by telephone.

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Motion to Stay Further Proceedings

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Courts have discretion to stay proceedings to prevent “substantial hardship or inequity

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which a party may suffer” without the stay. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.

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1962). The party that requests a stay has the burden to show the necessity of the stay. Clinton v.

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Jones, 520 U.S. 681, 708 (1997). Mr. Kaes has asked the court to stay further proceedings, in

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essence, so he can evaluate whether he has the wherewithal to prosecute this case. As well, Mr.

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Kaes hopes the United States will eventually provide him with information helpful to his claims.

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The court finds Mr. Kaes would not suffer substantial hardship or inequity in the absence of a stay

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because he has already had more than five months to decide whether to prosecute this case and to

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request information from the United States.

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Conclusion

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The court therefore denies the request to hold the status conference in camera and seal

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records of the conference, grants Bruce P. Babbitt leave to appear at the status conference by

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telephone, denies Weldon S. Wood leave to appear at the status conference by telephone, and
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denies the motion to stay further proceedings. The status conference remains scheduled for

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September 15, 2015.

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IT IS SO ORDERED.
Dated: 9/10/2015

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________________________
HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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