Tobar et al v. United States of America

Filing 206

ORDER: Defendant's Motion in Limine (Dkt # 199 ) is granted. Evidence of damages at trial shall be limited to the claims of Plaintiffs Tobar and Lucas. Plaintiffs' "Motion" in Limine (Dkt # 198 ) is denied without prejudice. Signed by Judge William Q. Hayes on 8/4/2015. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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OSWALDO ENRIQUE TOBAR, et
al.,

Civil No. 07cv00817-WQH-JLB
ORDER

Plaintiffs,

vs.
UNITED STATES OF AMERICA,

Defendant.

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16 HAYES, Judge:
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The matters before the Court are the “Motion” in Limine filed by Plaintiffs (ECF

18 No. 198) and the Motion in Limine filed by Defendant (ECF No. 199).
19 I. Background
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On January 4, 2007, Plaintiffs commenced this action by filing a Complaint

21 against Defendant United States of America in the Southern District of Texas. (ECF
22 No. 1). On May 2, 2007, this action was transferred to this Court. (ECF No. 1). On
23 August 31, 2007, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil
24 Procedure 12(b)(1) for lack of subject matter jurisdiction. (ECF No. 10). On January
25 15, 2008, the Court dismissed the Complaint for lack of subject matter jurisdiction,
26 finding that the United States has not waived its sovereign immunity. (ECF No. 27).
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On February 5, 2008, Plaintiffs filed the First Amended Complaint (“FAC”),

28 which is the operative pleading in this case. (ECF No. 28). The FAC alleges subject
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1 matter jurisdiction pursuant to the following sources: (1) the Suits in Admiralty Act
2 (“SAA”), 42 U.S.C. § 741 et seq.; (2) the Public Vessels Act (“PVA”), 46 U.S.C. § 781
3 et seq. and including 46 U.S.C. § 31111 (providing reciprocity requirement for suits
4 brought by foreign nationals); (3) two treaties between the United States and Ecuador,
5 one pursuant to the United Nations Covenant on the Law of the Sea (“UNCLS”) and
6 another entered into in 1999 (the “1999 Treaty”); (4) the Alien Tort Act (“ATA”), 28
7 U.S.C. § 1350; and (5) the International Covenant on Civil and Political Rights
8 (“ICCPR”). The FAC alleges that Plaintiffs are residents of Ecuador. The FAC alleges
9 that on or about October 5, 2005, Defendant’s agents “unlawfully and negligently,
10 stopped, searched, arrested, detained and imprisoned the Plaintiffs, seized the boat,
11 destroyed the cargo and fish owned by Plaintiffs Rosa Carmelina Zambrano Lucas, and
12 Oswaldo Enrique Tobar, for allegedly possessing illegal drugs” in international waters
13 off the Galapagos Islands. (ECF No. 28 at 3). The FAC alleges that “agents of the
14 Defendant were careless, reckless and negligent in this case or alternatively their acts
15 were intentional in that they ... [a]rrested and detained the Plaintiffs for no reason for
16 over 99 days ... [f]ailed to ascertain that Plaintiffs were not drug dealers and/or
17 smugglers ... [a]rrested the Plaintiffs without probable cause ... [f]alsely imprisoned the
18 Plaintiffs for no reason despite Plaintiffs’ protestations ... [f]ailed to release the
19 Plaintiffs and their vessel when it became known they were not drug smugglers and did
20 not possess any illegal substances ... [v]iolated the Plaintiffs’ international legal rights
21 and law of the sea ... [v]iolated international law by boarding and seizing a foreign
22 flagged vessel in international waters ... [c]ommitted various and numerous assaults on
23 Plaintiffs persons during their imprisonment ... [w]rongfully seized and kept the vessel
24 owned by Plaintiffs Rosa Carmelina Zambrano Lucas and Oswaldo Enrique Tobar ...
25 violated right of privacy of all the Plaintiffs ... [d]estroyed the personal property of the
26 Plaintiffs without probable cause ... [h]eld the Plaintiffs as prisoners under armed guard
27 ... [and] [v]iolated specific treaty obligations with Ecuador.” Id. at 4. The FAC alleges
28 that all Plaintiffs have suffered humiliation, physical and mental pain and suffering,
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1 extreme anxiety and depression. The FAC alleges that Plaintiffs Rosa Carmelina
2 Zambrano Lucas and Oswaldo Enrique Tobar have suffered from destruction of their
3 personal property, property damage to the vessel, loss of their catch of fish in the
4 amount of $500,000, lost use of the vessel, and public ridicule. Plaintiffs assert no
5 claims for relief but request $5,025,000.00 in damages.
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On June 5, 2008, Defendant filed a motion to dismiss for lack of subject matter

7 jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 31). On
8 July 15, 2008, Plaintiffs filed a motion for leave to file a second amended complaint,
9 adding the Military Claims Act (“MCA”), 10 U.S.C. section 2734, and a regulation, 49
10 C.F.R. section 1.46(b), as additional bases for subject matter jurisdiction. (ECF No.
11 44). On September 19, 2008, the Court issued an order granting the motion to dismiss
12 and denying leave to amend. (ECF No. 57). The Court’s September 19, 2008 Order
13 concluded that the United States had not waived its sovereign immunity under any of
14 the sources alleged in the FAC or proposed second amended complaint.
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On September 22, 2008, judgment was entered. (ECF No. 58). On October 22,

16 2008, Plaintiffs filed a notice of appeal. (ECF No. 59). On June 14, 2011, the United
17 States Court of Appeals for the Ninth Circuit issued an opinion, affirming in part and
18 vacating in part the September 19, 2008 Order. Tobar v. United States, 639 F.3d 1191
19 (9th Cir. 2011); (ECF No. 70).
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A. Tobar I

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The U.S. Court of Appeals for the Ninth Circuit affirmed this Court’s finding that

22 there is no waiver of sovereign immunity as to all non-Congressional sources, the
23 MCA, the ATA, and the treaties cited by Plaintiffs. Tobar, 639 F.3d at 1195-96. As
24 to the PVA, SAA, and Federal Tort Claims Act (“FTCA”), the Ninth Circuit found that
25 the case fell within the scope of the PVA. Id. at 1199. Accordingly, the Ninth Circuit
26 held that the PVA’s reciprocity requirement, 46 U.S.C. section 31111, must be met in
27 order for Plaintiffs to maintain suit under PVA, SAA, or FTCA as foreign nationals.
28 Id. at 1196, 1199. The Ninth Circuit stated that “[w]e are uncertain whether a plaintiff
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1 bears the burden of establishing the content of foreign law for purposes of the PVA’s
2 reciprocity requirement.” Id. at 1200. The Ninth Circuit concluded that “the district
3 court apparently did not recognize that, in its discretion, it could inquire further into the
4 content of Ecuadorian law.” Id. “We therefore vacate and remand.” Id. “[W]e find
5 it appropriate to give the parties and the court an additional opportunity to determine
6 this threshold question.” Id.
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B. The June 13, 2012 Order (ECF No. 100)

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On July 6, 2011, the Court ordered that “[t]he parties shall file supplemental

9 briefing regarding whether reciprocity exists under Ecuadorian law within seventy-five
10 days of the date of this order.” (ECF No. 73). On January 5, 2012, the Court ordered
11 that “[t]he parties are ordered to file English-language translations of every Constitution
12 or Constitutional provision, law, statute, or legal authority upon which they rely no later
13 than thirty days from the date of this Order.” (ECF No. 92). On March 13, 2012, the
14 Court ordered that “the parties shall file Memorandums addressing the issue of whether
15 the discretionary function exception applies to the Public Vessels Act and would require
16 dismissal of this action independent of any ruling as to reciprocity no later than March
17 26, 2012.” (ECF No. 95). Following supplemental briefing on these issues, the Court
18 issued an order on June 13, 2012. (ECF No. 100).
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In the June 13, 2012 Order, the Court concluded that the discretionary function

20 exception applied in this case under both the PVA and the SAA. The Court also
21 concluded that reciprocity does not exist with Ecuador, and, as a result, sovereign
22 immunity was not waived under the PVA.
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On July 12, 2012, Plaintiffs filed a notice of appeal of the June 13, 2012 Order.

24 (ECF No. 101). On November 20, 2013, the Ninth Circuit issued an opinion affirming
25 in part and vacating in part the June 13, 2012 Order. Tobar v. United States, 731 F.3d
26 938 (9th Cir. 2013); (ECF No. 107).
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C. Tobar II

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In Tobar II, the Ninth Circuit considered “whether the government has waived
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1 its sovereign immunity,” specifically, “whether reciprocity with Ecuador exists and, if
2 so, whether the discretionary function exception bars Plaintiffs’ claims.” Tobar, 731
3 F.3d at 941. With respect to reciprocity, the Ninth Circuit “disagree[d] with the district
4 court’s analysis of the experts’ affidavits.” Id. Specifically, the Ninth Circuit found
5 that Plaintiffs’ expert affidavits established that sovereign immunity does not exist in
6 Ecuador because it is a civil law nation and there would be “no legal impediment to a
7 United States citizen’s suing the Ecuadorian government in similar circumstances....”
8 Id. at 942. Therefore, “reciprocity exists” and cannot be a basis for finding sovereign
9 immunity. Id.
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With respect to the discretionary function exception, the Ninth Circuit began its

11 analysis by holding that the discretionary function exception applies generally to suits
12 under the PVA and SAA, as it does to suits brought under the FTCA. The Ninth Circuit
13 then considered whether the discretionary function exception applies in this case,
14 barring Plaintiffs’ claims. With respect to the first step of the analysis, “whether the
15 challenged actions involve an ‘element of judgment or choice,’” Terbush v. United
16 States, 516 F.3d 1125, 1129 (9th Cir. 2008) (citation omitted), the Ninth Circuit found,
17 based on the pleadings, that Plaintiffs had established that Defendant’s actions did not
18 involve an element of judgment or choice. Tobar, 731 F.3d at 946-47. Specifically, the
19 Ninth Circuit found:
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[Plaintiffs] assert that the government violated its own regulations and
policies. In particular, the U.S. Coast Guard Maritime Law Enforcement
Manual provides: “When acting pursuant to flag State authorization, the
boarding State may not exceed the terms of the authorization. Such
authorization may be contained in a pre-existing written agreement or may
be provided on an ad hoc basis.” That policy does not afford any
discretion: “the boarding State may not exceed the terms of the
authorization.” (Emphasis added.) Here, the specific authorization to board
and inspect Plaintiffs’ boat contained the following condition: “If there are
no drugs on board, and there are damages or losses sustained by the vessel,
in accordance to the U.S. laws and in a manner complying with
international laws, the owner of the vessel will be compensated, as long
as neither the vessel nor the crew have been involved in illicit actions.”
That directive, too, is specific and mandatory: The owner “will be
compensated,” so long as the specified conditions are met. (Emphasis
added.) By carrying out its activities with respect to Plaintiffs’ boat, the
government accepted that mandatory obligation.
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Accordingly, to the extent that Plaintiffs demonstrate that all of the
specified conditions have been met, their claims are not barred by the
discretionary function exception.

3 Id. at 946. The Ninth Circuit provided further discussion of the “specified conditions”
4 that Plaintiffs would be required to “demonstrate” in order to show that the
5 discretionary function exception did not exist:
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It is less clear that Plaintiffs have exhausted their administrative
remedies, as required by the policy: “in accordance to the U.S. laws and
in a manner complying with international laws, the owner of the vessel
will be compensated.” The complaint alleges that Plaintiffs “filed a claim
for injuries with the United States Navy and Coast Guard” and that the
government took no action on that claim within six months, “tantamount
to denial of the claim.” At oral argument, the government’s lawyer
suggested that the administrative denial of Plaintiffs’ claim resulted from
Plaintiffs’ failure to provide documentation of damages. In order to prove
that the government violated its nondiscretionary duty to pay damages to
the owner, Plaintiffs must demonstrate that it met the administrative
requirements imposed by federal law. But these issues cannot be decided
on the pleadings.
Two additional, related restrictions warrant mention. First, the
non-discretionary duty requires the government to pay damages to “the
owner” of the boat. (Emphasis added.) Because the government’s
non-discretionary duty applies only to the owner of the boat, the only
Plaintiffs who can benefit from the policy are the owners. Second, the
nondiscretionary duty pertains to “damages or losses sustained by the
vessel.” Plaintiffs have alleged a wide range of injuries, including physical
damages to the boat itself and reputational damages to crew members
resulting from “public ridicule.” Because the parties have not briefed the
issue, we express no view on the extent of “damages or losses”
encompassed by the non-discretionary duty to pay.

19 Id. at 947.
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With respect to the second step of the analysis, “‘whether that judgment is of the

21 kind that the discretionary function exception was designed to shield,’ namely, ‘only
22 governmental actions and decisions based on considerations of public policy,’”
23 Terbush, 516 F.3d at 1129 (citation omitted), the Ninth Circuit found that “[t]he
24 challenged actions—the boarding, searching, and towing of the ship—all fall under
25 policy considerations of domestic drug enforcement laws, ‘minimization of intrusion
26 on the privacy and property interests of searched parties,’ general considerations of
27 foreign relations, as well as ‘weighing the costs of [boarding and searching the ship]
28 against the likelihood of an enforcement success.’” Tobar, 731 F.3d at 948 (citation
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1 omitted). The Ninth Circuit held: “We therefore hold that, to the extent that Plaintiffs’
2 claims fall outside the non-discretionary duty to pay damages, their claims are barred
3 by the discretionary function exception.” Id.
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D. Pretrial Proceedings

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On October 24, 2014, Plaintiffs filed a motion for partial summary judgment and

6 a motion to defer discovery. (ECF No. 158). On January 16, 2015, the Court issued an
7 Order scheduling a pretrial conference for May 22, 2015 and a bench trial for
8 September 29, 2015. On April 2 and 3, the parties filed their memoranda of facts and
9 contentions of law. (ECF Nos. 189-90). On April 15, 2015, the parties filed a proposed
10 final pretrial order. (ECF No. 191). On July 31, 2015, the Court issued the Final
11 Pretrial Order as submitted by the parties. (ECF No. 204).
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The Final Pretrial Order states that Plaintiffs’ claims are brought under the SAA,

13 PVA, and FTCA on a theory of negligence related to the boarding, search, and seizure
14 of the Jostin and arrests of Plaintiffs. Trial will involve jurisdictional, liability, and
15 damages issues. Jurisdictional and liability issues will include: (1) whether drugs were
16 found aboard the Jostin; (2) whether the Jostin or its crew were involved in illicit
17 activities; (3) whether the Jostin was damaged; (4) whether Plaintiffs have exhausted
18 their administrative remedies; and (5) whether Plaintiffs may be compensated “in a
19 manner complying with international law....” Tobar, 731 F.3d at 946-47. Damages
20 issues will include the extent of “damages or losses sustained by the vessel.” Tobar,
21 731 F.3d at 947.1
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E. The Pending Motions in Limine (ECF Nos. 198, 199)

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On May 19, 2015, the Court held a pretrial conference. (ECF No. 196). On May

24 21, 2015, the Court issued an Order setting a briefing schedule for the parties’ motions
25 in limine. (ECF No. 197).
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On June 25, 2015, Plaintiffs filed the “Motion” in Limine. (ECF No. 198). On

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The foregoing paragraph shall not be construed as precluding any additional
factual issues from being tried at trial.
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1 June 29, 2015, Defendant filed the Motion in Limine. (ECF No. 199). On July 9, 2015,
2 Plaintiffs filed an opposition to Defendant’s Motion in Limine. (ECF No. 200). On
3 July 10, 2015, Defendant filed an opposition to Plaintiffs’ “Motion” in Limine. (ECF
4 No. 201).

On July 17, 2015, Defendant filed a reply in support of its Motion in

5 Limine. (ECF No. 202).
6 II. Defendant’s Motion in Limine (ECF No. 199)
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Defendant contends that the holding of Tobar II, which is law of the case, limited

8 the Plaintiffs who may recover damages to Plaintiffs who own the Jostin. Plaintiffs
9 contend that Defendant incorrectly interprets Tobar II and that a law review article
10 written about this case “is most helpful on this question....” (ECF No. 200 at 2).
11 Plaintiffs contend that discovery “demonstrates that the discretionary function does not
12 apply” and assert that “Plaintiffs intend to litigate the issue with the Court’s permission
13 now that there has been discovery on who made the decision to stop and board the
14 Plaintiffs’ vessel and who was responsible.” Id. Plaintiffs contend that the officer in
15 charge of the Coast Guard boarding party stated that he had no discretion.
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In the Court’s June 13, 2012 Order, the Court noted that it had already held that

17 “Plaintiffs failed to establish subject matter jurisdiction under the SAA because the
18 discretionary function exception applies retaining sovereign immunity for the United
19 States.” (ECF No. 100 at 8). The Court found that “the discretionary function
20 exception applies to the PVA claim as well.” Id.
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In Tobar II, the Ninth Circuit Court of Appeals affirmed in part and vacated in

22 part the Court’s June 13, 2012 Order finding that the United State had not waived
23 sovereign immunity in this case. The Court of Appeals found that the specific
24 authorization to board the Jostin was not discretionary, and the specific authorization
25 created a “non-discretionary duty” to pay damages, as long as the conditions specified
26 in the specific authorization are satisfied. 731 F.3d at 946 (“[T]o the extent that
27 Plaintiffs demonstrate that all of the specified conditions have been met, their claims
28 are not barred by the discretionary function exception.”). The Court of Appeals also
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1 recognized that the “non-discretionary duty” to pay damages was limited to “‘the
2 owner’ of the boat.” Id. at 947 (emphasis in original). The Court of Appeals therefore
3 affirmed this Court’s June 13, 2012 holding—that the discretionary function exception
4 bars Plaintiffs’ claims—with respect to all non-owner Plaintiffs, and vacated this
5 Court’s holding with respect to owner Plaintiffs.
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Plaintiffs do not dispute that the only owners of the Jostin are Plaintiffs Tobar

7 and Zambrano-Lucas. See ECF No. 191 at 21 (“At all relevant times, the owners of
8 JOSTIN were plaintiffs Enrique Tobar and Rosa Zambrano Lucas.”). Applying the law
9 of the case, only Plaintiffs Tobar and Zambrano-Lucas, the owners of the Jostin, may
10 recover damages.2
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Defendant’s motion in limine is granted. Evidence of damages at trial shall be

12 limited to the claims of Plaintiffs Tobar and Lucas.3
13 III. Plaintiffs’ “Motion” in Limine (ECF No. 198)
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Plaintiffs’ “Motion” in Limine contains thirty-four motions in limine. (ECF No.

15 198). The majority of Plaintiffs’ motions in limine are not connected to any particular
16 evidence and request that the Court comply with the Federal Rules of Evidence. See,
17 e.g., Plaintiffs’ motion in limine #10, ECF No. 198 at 4 (requesting exclusion of “[a]ny
18 question that mentions any previous arrests or convictions of Plaintiffs”) (citing Fed.
19 R. Evid. 607). Plaintiffs’ attached Memorandum of Points and Authorities contends
20 that Plaintiffs may recover non-economic damages at trial and that Plaintiffs may take
21 trial depositions of Ecuadorian witnesses. (ECF No. 198-1). The Memorandum of
22 Points and Authorities does not reference the thirty-four motions in limine.
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Defendant contends that Plaintiffs motions in limine are “superfluous” for a

24 bench trial, where there is no need for the Court to make threshold rulings outside the
25 presence of the jury. (ECF No. 201 at 5). Defendant contends that Plaintiffs’ motions
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The Coast Guard officer’s opinion that he had “no discretion” does not provide

27 grounds for departing from the Court’s June 13, 2012 holding. (ECF No. 200 at 2).
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The Court expresses no opinion on the categories of damages that Plaintiffs
Tobar and Zambrano-Lucas may recover at trial.
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1 in limine do not provide sufficient evidentiary context. Defendant contends that
2 Plaintiffs’ motions in limine reargue issues that the Court has already rejected.
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A. Motions in Limine #1-#27

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Plaintiffs’ motions in limine #1-#27, which request the exclusion of certain

5 categories of evidence, are denied without prejudice. Plaintiffs may object to particular
6 evidence at trial, where the Court will be able to determine admissibility in light of the
7 purposes for which the evidence is offered and the context in which the evidence is
8 offered.
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B. Motion in Limine #28
Plaintiffs’ motion in limine #28 requests that Plaintiffs be allowed to offer

11 evidence of their costs and fees in this case. Plaintiffs’ motion in limine #28 is denied
12 without prejudice. Requests for costs or fees, with any supporting evidence, shall be
13 brought post-trial, rather than at trial.
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C. Motion in Limine #29-#33

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Plaintiffs’ motions in limine #29-#33 request that Plaintiffs be allowed to offer

16 certain substantive evidence.

Plaintiffs’ motions are denied without prejudice.

17 Plaintiffs may seek to offer particular evidence at trial, where the Court will be able to
18 determine admissibility in light of the purposes for which the evidence is offered and
19 the context in which the evidence is offered.
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D. Motion in Limine #34

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Plaintiffs’ motion in limine #34 requests that Plaintiffs “be allowed to call

22 witnesses from Ecuador via teleconference for trial or alternative [sic] take their trial
23 testimony before hand in Ecuador.” (ECF No. 198 at 9). Defendant contends that
24 Plaintiffs are at fault for failing to take depositions during discovery and that Plaintiffs’
25 previous requests for additional discovery have been denied by the Court. Defendant
26 contends that the calling of witnesses from Ecuador via telephone would violate
27 Ecuadorian law.
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On December 19, 2013, following Tobar II, United States Magistrate Judge
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1 William McCurine, Jr. issued a Scheduling Order, setting a discovery deadline of
2 December 1, 2014. (ECF No. 116 at 3). On August 7, 2014, United States Magistrate
3 Judge Jill L. Burkhardt issued an Order stating that the “agreed upon discovery plan
4 includes ... defense counsel providing plaintiffs counsel the State Department Advisory
5 on depositions in Ecuador....” (ECF No. 134). On August 20, 2014, Defendant filed
6 a Discovery Status Update stating that Defendant advised Plaintiffs’ counsel that “[t]he
7 taking of voluntary depositions of willing witnesses is not permitted in Ecuador,
8 regardless of the nationality of the witness.” (ECF No. 139 at 2) (quotation marks
9 omitted).
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On September 5, 2014, Plaintiffs filed a motion for protective orders and a

11 motion to quash notices of depositions. (ECF No. 147). Plaintiffs, Ecuadorian
12 residents, requested an order preventing Plaintiffs from being deposed in San Diego,
13 California pursuant to deposition notices that Defendant served on Plaintiffs. On
14 September 25, 2014, the magistrate judge issued an Order denying Plaintiffs’ motion
15 because Plaintiffs had failed to submit evidence demonstrating that they would be
16 unduly burdened by a deposition in San Diego, California. (ECF No. 152).
17

On October 24, 2014, Plaintiffs filed a motion to defer discovery pending

18 resolution of Plaintiffs’ motion for partial summary judgment.

(ECF No. 158).

19 Plaintiffs contended that “[t]here are potentially 40 or more witnesses than [sic] would
20 be deposed in this case who are located all over the world” and that an order on the
21 motion for partial summary judgment may “preclude a large portion of the case.” (ECF
22 No. 158-1 at 10). On January 16, 2015, the Court issued an Order denying Plaintiffs’
23 motion to defer discovery as moot because the discovery cut-off date of December 1,
24 2014 had passed. (ECF No. 182). The Order stated that any requests to re-open
25 discovery in this case “shall be filed before the magistrate judge assigned to this case
26 no later than twenty (20) days from the date this order is filed.” Id. at 15.
27

On February 5, 2015, Plaintiffs filed a motion to reopen discovery. (ECF No.

28 183). Plaintiffs moved for an order reopening discovery, which would enable Plaintiffs
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1 to depose over twenty Plaintiffs and fifteen additional witnesses in Ecuador. Plaintiffs
2 contended that “Plaintiffs will use these depositions for trial purposes as evidence and
3 not merely for discovery.” (ECF No. 183-1 at 6). On March 26, 2015, the magistrate
4 judge issued an Order denying Plaintiffs’ motion to reopen discovery. (ECF No. 188).
5 The magistrate judge found that it had been over a year since the Scheduling Order had
6 been issued and that Plaintiffs had not established that they were diligent in their efforts
7 to complete discovery in the time ordered by the Court. Plaintiffs did not appeal or
8 object to the magistrate judges’ ruling on the motion to reopen discovery.
9

On May 19, 2015, the Court held a pretrial conference and set a bench trial for

10 September 29, 2015. (ECF No. 197). On June 25, 2015, Plaintiffs filed the pending
11 “Motion” in Limine. (ECF No. 198).
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The record reflects that Plaintiffs have requested permission to take depositions

13 beyond the discovery cutoff date for trial purposes, and that request was denied by the
14 magistrate judge. Plaintiffs did not timely object to the magistrate judge’s ruling and
15 now request the same relief as trial approaches. See Fed. R. Civ. P. 72(a) (“A party may
16 serve and file objections to the [magistrate judge’s] order within 14 days after being
17 served with a copy.”). Plaintiffs have failed to establish that they were diligent in
18 obtaining discovery during the discovery period. To the extent Plaintiffs request
19 permission to take further depositions, that request is denied.4
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To the extent Plaintiffs request to call witnesses in Ecuador by telephone at trial,

21 Plaintiffs have cited no authority which would permit the Court to do so in compliance
22 with foreign and international law. Plaintiffs’ motion in limine #34 is denied.
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The fact that the depositions would be used for trial purposes instead of
discovery purposes is not grounds for permitting depositions well beyond the discovery
26 deadline. See, e.g., Integra Lifesciences I, Ltd. v. Merck KgaA, 190 F.R.D. 556, 558
(S.D. Cal. 1999) (“The Federal Rules of Civil Procedure do not distinguish between
27 depositions taken for discovery purposes and those taken strictly to perpetuate
testimony for presentation at trial.”); id. at 559 (“[I]f a party wishes to introduce
28 deposition testimony at trial, that testimony should [be] procured during the time set by
the court to conduct discovery absent exceptional circumstances.”).
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1 IV. Conclusion
2

IT IS HEREBY ORDERED that Defendant’s Motion in Limine (ECF No. 199)

3 is GRANTED. Evidence of damages at trial shall be limited to the claims of Plaintiffs
4 Tobar and Lucas.
5

IT IS FURTHER ORDERED that Plaintiffs’ “Motion” in Limine (ECF No. 198)

6 is DENIED without prejudice.
7 DATED: August 4, 2015
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WILLIAM Q. HAYES
United States District Judge

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