Hardisty v. Moore et al

Filing 135

ORDER denying without prejudice Plaintiff's 125 Ex Parte Motion to Compel Defendants' Attendance at Trial and 125 Ex Parte Motion to Exclude Documents Withheld from Production. Signed by Judge Cynthia Bashant on 9/10/2014. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S EX
PARTE APPLICATION

Plaintiff,

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Case No. 11-cv-01591-BAS(BLM)

JOHN T. HARDISTY,

(ECF No. 125)

v.

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HAROLD MAXINE MOORE, et al.,

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Defendants.

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AND RELATED COUNTERCLAIM

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Pending before the Court is an ex parte application filed by Plaintiff John

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Hardisty (“Plaintiff”) seeking an order (1) compelling defendants Harold M. Moore,

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Elaine K. Moore (a/k/a Melanie K. Moore), and Mark Peluso (collectively

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“Defendants”) to appear on the first two days of the bench trial in this matter which

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is set to commence before this Court on September 16, 2014; and (2) excluding any

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and all documents Defendants may or may not produce related to Defendants’

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Exhibit 30 at section VI.B of this Court’s Pretrial Order (ECF No. 124). Defendants
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filed an opposition. (ECF No. 132.) For the reasons set forth below, the Court

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DENIES WITHOUT PREJUDICE Defendants’ ex parte application (ECF No.

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125).

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I.

MOTION TO COMPEL DEFENDANTS TO APPEAR AT TRIAL

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Plaintiff seeks an order compelling Defendants to appear during the first two

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days of trial, and should Defendants fail to appear, requests that the Court impose

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appropriate sanctions on Defendants, including but not limited to entry of default

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judgment. (ECF No. 125 at p. 8.) Plaintiff contends that Defendants have informed

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him they may or may not attend trial until after Plaintiff’s case-in-chief, if at all.

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(ECF No. 125-2 at Exh. 7.)

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As a preliminary matter, both Plaintiff and Defendants intend to call

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Defendants at trial. (See ECF Nos. 124, 127, and 128.) In order to ensure that trial

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proceeds as expeditiously and efficiently as possible, the trial court is given broad

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discretion in managing a trial. See HBE Leasing Corp. v. Frank, 22 F.3d 41, 45 (2d

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Cir. 1994); Fed. R. Civ. P. 16; Fed. R. Evid. 611(a). As stated in the Court’s

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Standing Order for Civil Cases, the Court expects counsel and witnesses “to be

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present for trial except in case of emergency.” (Standing Order for Civil Cases at p.

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8.) Accordingly, the Court expects Defendants, who are named in the Pretrial Order

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(ECF No. 124) and in Counterclaimant’s and Defendants’ Final Witness List (ECF

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No. 127), simply by virtue of its Standing Order, to be present for the entire trial so

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that the Court can efficiently manage and control the trial.

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The Court does not, however, have the authority to compel the attendance of

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Defendants at trial absent service of trial subpoenas pursuant to Federal Rule of

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Civil Procedure 45. See McGill v. Duckworth, 944 F.2d 344, 353-54 (7th Cir. 1991);

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Fed. R. Civ. P. 45. Accordingly, Plaintiff must serve trial subpoenas on Defendants

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before moving to compel the attendance of Defendants at trial. In this regard, the

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Court notes that it preliminarily determines that – even at this late stage –

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Defendants have been given adequate notice and afforded reasonable time to comply
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with trial subpoenas requiring Defendants to be present in Courtroom 4B of the

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above-captioned court on September 16, 2014 at 9:00 a.m. See Fed. R. Civ. P.

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45(d)(3).

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There is no dispute that Defendants are key witnesses in this case. There is

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also no dispute that Plaintiff has indicated at every opportunity he intends to call

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Defendants at trial. Plaintiff put Defendants on notice as early as March 28, 2014

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that he intended to call Defendants as witnesses. (ECF No. 83.) On July 21, 2014,

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in the Parties’ proposed joint Pretrial Order, Plaintiff again listed Defendants as

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witnesses he expected to call at trial. (ECF No. 124 at pp. 9-10.) Moreover,

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Defendants indicated in the Pretrial Order and their Final Witness List that they will

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be called at trial (ECF No. 124 at pp. 12-13; ECF No. 127), and no scheduling or

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other attendance issue was raised at the Pretrial Conference held on August 25,

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2014. Thus, Plaintiff had every reason to assume Defendants would be present at

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trial. See Wells v. Rushing, 755 F.2d 376, 380-81 (5th Cir. 1985).

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For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE

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Plaintiff’s motion to compel Defendants to appear during the first two days of trial.

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II.

MOTION TO EXCLUDE DOCUMENTS

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Plaintiff also seeks to exclude from trial Defendants’ Exhibit 30 listed in the

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Pretrial Order under Section VI(B) as an exhibit Defendants expect to offer at trial.

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(ECF No. 125 at p. 2.) Plaintiff contends that it was not timely produced and should

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therefore be excluded. (Id. at pp. 8-10.) Plaintiff also seeks sanctions pursuant to

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Federal Rule of Civil Procedure 37(c). (Id. at p. 10.)

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Exhibit 30 is described in the Pretrial Order as “[c]hecks and other

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contributions by Hal Moore to Legacy Pointe.” (ECF No. 124 at p. 27.) No bates

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stamp number is listed as corresponding to the proposed exhibit. (Id.) Plaintiff

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argues this exhibit was not produced in discovery, despite Plaintiff’s discovery

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request for “[a]ll documents that [Defendants] intend to introduce at the trial in this

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matter.” (ECF No. 125 at p. 3; ECF No. 125-3 at Exh. 1, p. 13 (Request No. 45).)
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Defendants’ discovery responses show that Defendants simply objected to Request

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No. 45 to the extent it seeks information dated, drafted or otherwise created after

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October 21, 2009, seeks information protected by the spousal privilege, attorney-

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client privilege, and/or attorney work product privilege, and on the grounds it seeks

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premature expert witness disclosure, and produced no documents in compliance with

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the request. (ECF No. 125-3 at Exh. 2 (General Objections & Response to Request

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No. 45).) There is no suggestion that Defendants supplemented this response.

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Defendants contend they generally identified the documents in their initial

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disclosures served on January 14, 2014 and listed the documents again on a revised

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draft of the proposed Joint Pretrial Conference Order, which was circulated to

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Plaintiff’s counsel on April 18, 2014, and the final proposed Pretrial Order submitted

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July 21, 2014. (ECF No. 125-2 at Exh. 1; ECF No. 132 at pp. 3-4.) Defendants

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further argue that Plaintiff did not specifically request copies of such documents

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during discovery. (ECF No. 132 at p. 3.) Alternately, Defendants argue they

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objected to Plaintiff’s Request No. 45 and Plaintiff did not challenge the response or

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move to compel. (Id. at p. 4.) Plaintiff argues in response that discovery obligations

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are continuing in nature. (ECF No. 125 at pp. 9-10.)

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Federal Rule of Civil Procedure 26(e) provides that “[a] party who has made a

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disclosure under Rule 26(a)—or who has responded to an interrogatory, request for

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production, or request for admission—must supplement or correct its disclosure or

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response…in a timely manner if the party learns that in some material respect the

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disclosure or response is incomplete or incorrect, and if the additional or corrective

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information has not otherwise been made known to the other parties during the

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discovery process or in writing.” Fed. R. Civ. P. 26(e).

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If a party fails to comply with Rule 26(e), “the party is not allowed to use that

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information or witness to supply evidence on a motion, at a hearing, or at a trial,

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unless the failure was substantially justified or is harmless.”

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37(c)(1). “The party facing sanctions bears the burden of proving that its failure to
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disclose the required information was substantially justified or is harmless.” R&R

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Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012) (citing Torres v.

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City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008)); see also Yeti by Molly, Ltd. v.

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Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

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The Court agrees that Plaintiff requested Exhibit 30 in his requests for

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production and that Defendants failed to produce such documents. However, the

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identity of these documents and the prejudicial or otherwise harmless nature of the

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failure to disclose is still unclear to the Court. As of the time of filing this ex parte,

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Plaintiff had not had an opportunity to review the documents and Defendants did not

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address in their opposition whether their failure to disclose was substantially

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justified or harmless. Therefore, the Court DENIES WITHOUT PREJUDICE

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Plaintiff’s ex parte motion to exclude Exhibit 30.

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III.

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CONCLUSION & ORDER
Accordingly, for the foregoing reasons, the Court DENIES WITHOUT

PREJUDICE Plaintiff’s ex parte application.
IT IS SO ORDERED.

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DATED: September 10, 2014

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