Hupp v. San Diego County District Attorney et al

Filing 267

ORDER: (1) Denying (Doc. 261 ) Plaintiff's Ex Parte Motion for Reconsideration; and (2) Discharging Order to Show Cause (Doc. 256 ). Signed by Magistrate Judge Ruben B. Brooks on 6/24/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL HUPP,

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Plaintiff,
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v.
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SAN DIEGO COUNTY, SAN DIEGO
POLICE DEPARTMENT, et al.,

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Defendants.

Civil No. 12cv0492 GPC(RBB)

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ORDER
(1) DENYING PLAINTIFF’S EX
PARTE MOTION FOR
RECONSIDERATION [ECF NO. 261];
AND
(2) DISCHARGING ORDER TO SHOW
CAUSE [ECF NO. 256]

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Plaintiff Paul Hupp, proceeding pro se, brought this action

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pursuant to 42 U.S.C. § 1983 on February 28, 2012.

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No. 1.)

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the Court describes the allegations in broad strokes.1

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action arises from his contempt of court charges and conviction in

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San Diego Superior Court in 2011.

(Compl. 1, ECF

The parties are familiar with the facts of the case, and
Hupp’s

(See Third Am. Compl. 4-5, 7-8,

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A more detailed recitation of the factual and procedural
history is available in the Court’s June 3, 2014 Order Denying
Motion to Compel Discovery [ECF No. 259].
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ECF No. 64.)

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conference in this case and issued an Order to Show Cause for

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Plaintiff’s failure to appear [ECF No. 256].

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Plaintiff filed his response to the Court’s Order to Show Cause

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[ECF No. 258].

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Motion for Reconsideration of the Court’s June 3, 2014 discovery

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Order [ECF No. 261].

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Plaintiff’s Motion for Reconsideration.

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issued for Plaintiff’s failure to participate in the settlement

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On May 6, 2014, the Court held a settlement

On May 19, 2014,

Pending before the Court is Plaintiff’s Ex Parte

For the following reasons, the Court DENIES
The Order to Show Cause

conference is discharged.

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I.

DISCUSSION

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A.

Plaintiff’s Motion for Reconsideration

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On June 9, 2014, the Court received a document titled “Rep[l]y

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to Magistrate Brooks June 3, 2014 ‘Order’ Denying Plaintiff’s

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Motion to Compel Discovery From San Diego County, James Patrick

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Romo and Peter Myers [ECF 154] and Request for Reconsideration”

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[ECF No. 261].

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for Reconsideration of the Court’s discovery ruling.

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The Court treats this request as Plaintiff’s Motion

Motions for reconsideration are generally treated as motions

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to alter or amend the judgment under Federal Rules of Civil

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Procedure 59(e).

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F.2d 528, 542 (9th Cir. 1990); MGIC Indem. Corp. v. Weisman, 803

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F.2d 500, 505 (9th Cir. 1986).

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grounds for a Rule 59(e) motion:

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that the motion is necessary to correct manifest errors of law or

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fact upon which the judgment is based; 2) the motion may be granted

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so that the moving party may present newly discovered or previously

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unavailable evidence; 3) the motion will be granted if necessary to

See In re Agric. Research & Tech. Grp., Inc., 916

Generally, there are four basic
1) the movant may demonstrate

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prevent manifest injustice, such as serious misconduct by counsel;

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and 4) a motion may be justified by an intervening change in

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controlling law.

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Federal Practice & Procedure § 2810.1 (3d ed. 1998) (citations

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omitted).

11 Charles Alan Wright & Arthur R. Miller,

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Alternatively, a court can construe a motion to reconsider as

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a motion for relief from a judgment or order under Federal Rule of

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Civil Procedure 60.

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a court order for the following reasons:

Under Rule 60, a party can obtain relief from
(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence which by due diligence could not have been discovered in

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time to move for a new trial under Rule 59(b); (3) fraud; (4) the

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judgment is void; (5) the judgment has been satisfied; (6) any

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other reason justifying relief from the operation of the judgment.

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Fed. R. Civ. P. 60(b).

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Motions to reconsider are appropriate only in rare

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circumstances to correct manifest errors of law or fact or to

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present newly discovered evidence.

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Multnomah Cnty., Oregon v. AcandS Inc., 5 F.3d 1255, 1263 (9th Cir.

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1993).

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court “to rethink what the court had already thought through-

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—rightly or wrongly.”

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Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).

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court was in error on the issues it considered should be directed

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to the court of appeals.

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Mitchell–Jackson, Inc., 605 F. Supp. 6, 7 (N.D. Ill. 1983).

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See School Dist. No. 1J,

A motion for reconsideration should not be used to ask a

Above the Belt, Inc. v. Mel Bohannan
Arguments that a

See Refrigeration Sales Co. v.

The Court’s local rules outline the requirements for seeking
reconsideration of an order.

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[I]it will be the continuing duty of each party and
attorney seeking such relief to present to the judge to
whom any subsequent application is made an affidavit of a
party or witness or certified statement of an attorney
setting forth the material facts and circumstances
surrounding each prior application, including inter alia:
(1) when and to what judge the application was made, (2)
what ruling or decision or order was made thereon, and
(3) what new or different facts and circumstances are
claimed to exist which did not exist, or were not shown,
upon such prior application.

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S.D. Cal. Civ. R. 7.1 (i)(1).

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must be filed within twenty-eight days after the entry of the order

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sought to be reconsidered.

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The application for reconsideration

Id. 7.1(i)(2).

Plaintiff’s June 9, 2014 submission is timely; however, it
See In re Agric.

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fails to meet the criteria for reconsideration.

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Research & Tech. Grp., Inc., 916 F.2d 533, 542 (9th Cir. 1990)

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(reviewing denial of motion for reconsideration for abuse of

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discretion and stating that “reconsideration may properly be denied

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where the motion fails to state new law or facts”).

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it was filed on an ex parte basis and not in compliance with the

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Local Rule 7.1(b), despite the fact that the pro se Plaintiff had

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previously obtained hearing dates for prior motions from this

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Court.

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Additionally,

Hupp’s chief complaint appears to be not the denial of his

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discovery motion, but the grant of substantive motions in favor of

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Defendants before the completion of discovery.2

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Recons. 2-3, ECF No. 261.)

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does not preclude a district court from resolving a summary

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judgment motion when the record is adequate.

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Carnahan, 132 F.3d 1234, 1238–39 (8th Cir. 1997); Fla. Power &

(Pl.’s Mot.

The fact that discovery is still open

See, e.g., Dulany v.

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Plaintiff acknowledges that the motions for summary judgment
were not before this Court. (Id. at 2 n.1.)
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Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1316 (11th Cir.

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1990) (“[I]t would be inappropriate to limit summary judgment to

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cases where discovery is complete in light of the valuable role

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served by summary judgment and the commitment of discovery issues

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to the sound discretion of the trial judge.”) (citation and

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internal quotation marks omitted).

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Plaintiff’s Motion to Compel Discovery on San Diego County,

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James Patrick Romo and Peter Myers [ECF No. 154] was accompanied by

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numerous exhibits and totaled 113 pages.

Hupp propounded fourteen3

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interrogatories, six requests for production, and six requests for

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admission on Defendant Romo.

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1a, 1b, & 1c, at 15-35, ECF No. 154.)

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for production on Myers, and six requests for production on the

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County.

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these requests were largely based on relevance; in the Motion to

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Compel, Hupp asserted his need for discovery but failed to explain

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how the information he sought related to any of his claims.

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Motion for Reconsideration, Plaintiff reiterates the same

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conclusory arguments.

(Pl.’s Mot. Compel Mem. P. & A. Exs.

(Id. Exs. 1d, 1e, at 36-48.)

He also served six requests

Defendants’ objections to

In his

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Hupp takes issue with the Court’s denial of his request for

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production of items listed in document request number two to the

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County; Plaintiff alleges that the Order “fails to elaborate or

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explain [the Court’s] ruling in any manner whatsoever.”

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Mot. Recons. 4, ECF No. 261.)

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“[a]ny and all documents that comprise of, or are part of, ROMO’s

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personnel file, including the disciplinary record and any other

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documents concerning ROMO’s hiring, training, duties, performance,

(Pl.’s

In his document request, Hupp sought

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Many interrogatories included multiple sub-parts.
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assignments and mental and physical condition.”

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Mem. P. & A. Ex. 1e, at 46, ECF No. 154.)

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request and Defendant’s objections, and concluded that the request

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did not relate to any claim or defense pending in the case.

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“[A]fter Defendant Romo’s dismissal from the case, any information

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Plaintiff expects to acquire from Romo’s personnel file does not

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appear to be germane to the remaining claims.”

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Compel 12, ECF No. 259.)

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(Pl.’s Mot. Compel

The Court discussed this

(Order Den. Mot.

Plaintiff also complains of the Court’s denial of discovery

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related to his earlier state criminal case, arguing that the basis

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and issues in this case involve his state civil contempt case.

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(Pl.’s Mot. Recons. 5, ECF No. 261.)

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from Defendant San Diego County related to both his civil contempt

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case, San Diego Superior Court Case Number

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37-2010-00102264-CU-HR-CTL, and his criminal case, San Diego

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Superior Court Case Number SCD238651.

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because Hupp’s state criminal case is ongoing and the federal claim

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related to it was stayed by Judge Curiel, Plaintiff could not

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propound discovery on that claim.

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No. 259.)

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justify reconsideration of this ruling.

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his criminal proceedings are not “at issue here.”

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Recons. 5, ECF No. 261.)

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Plaintiff sought documents

This Court noted that

(Order Den. Mot. Compel 10, ECF

Plaintiff does not present any new facts or argument to
Indeed, Hupp states that
(Pl.’s Mot.

Hupp’s civil contempt case was prosecuted by the Office of the

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Attorney General of California.

(Order Den. Mot. Compel 9, ECF No.

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259.)

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claims arise out of his state civil contempt case, he fails to

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explain why his request for documents related to that case was

Although Plaintiff contends that his federal civil rights

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properly addressed to Defendant County.

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request for documents because Plaintiff could not demonstrate that

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the responding party, Defendant County, had the requisite control

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over the documents.

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fails to offer any new facts to suggest the denial was in error.

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(Id.)

The Court denied the

Plaintiff’s Motion for Reconsideration

Plaintiff complains that the Court denied his document request

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three, which sought, inter alia, documents related to complaints

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about investigator Schmidt.

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Hupp acknowledges that Schmidt was not a party to the case, but

(Pl.’s Mot. Recons. 4, ECF No. 261.)

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Plaintiff argues that he should have been allowed to add Schmidt as

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a defendant.

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a party.

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(“Plaintiff may not file a fourth amended complaint to add Roe

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Defendant Dan Schmidt.”)

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reconsideration of the ruling as to this document request.

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Judge Curiel denied Hupp’s request to add Schmidt as

(Order Den. Pl.’s Mot. Extension 3, ECF No. 148)

Plaintiff has not shown a basis for

Hupp objects to the Court’s denial of his motion for

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production as to document request number five to Defendant County.

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(Pl.’s Mot. Recons. 4, ECF No. 261.) Plaintiff states that the

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Court issued the same ruling earlier “without giving Plaintiff a

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chance to be heard” and that Hupp “will not allow it to go

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unopposed a second time here.”

(Id. n.3.)

Hupp’s document request five sought any written communications

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between Freedom Communications Inc., Michael Bishop, Richard and

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Judith Beyl, any federal court, any federal law enforcement agency,

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any state law enforcement agency and any local law enforcement

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agency.

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154.)

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from Defendant City of San Diego.

(Pl.'s Mot. Compel Mem. P. & A. Ex. 1e, at 48, ECF No.

Plaintiff previously sought to compel the same discovery
(See Pl.’s Mot. Compel Attach.

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#1 mem. P. & A. 26, ECF No. 152.)

The Court denied these requests

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as unrelated to the current litigation, noting that the entity and

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individuals named in them were defendants in other civil cases

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initiated by Hupp.

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Granting & Den. Mot. Compel 25 & n.9, ECF No. 251.)

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not move for reconsideration of the Court’s previous ruling, which

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denied this request directed to Defendant City of San Diego.

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also did not file an objection to the Court’s discovery decision

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pursuant to the Federal Rule of Civil Procedure 72(a).

(Order Den. Mot. Compel 17, ECF No. 259; Order
Plaintiff did

He

The

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rationale for denying the request served on the City of San Diego

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is the same for denying the request to the County of San Diego.

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basis for reconsideration has not been shown.

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Plaintiff asserts that the Court has “independently taken

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evidence.”

(Pl.’s Mot. Recons. 5, ECF No. 261.)

But courts may

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take judicial notice of court records.

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Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal.

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1978), aff'd, 645 F.2d 699 (9th Cir. 1981); 9A Charles Alan Wright

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& Arthur R. Miller, Federal Practice & Procedure § 2409 (3d ed.

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1998) (“[T]he power of a court to take judicial notice of its own

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records amply was established by a multitude of cases.”).

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could also take judicial notice of the records of the proceedings

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in other courts, both within and without the federal judicial

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system.

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F.2d 731, 732 (9th Cir. 1958) (taking judicial notice of items

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appearing in the records of the Superior Court of Mendocino County

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and the District Court of Appeal); 9A Charles Alan Wright & Arthur

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R. Miller, Federal Practice & Procedure § 2409.

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Plaintiff does not dispute that the cases cited by the Court were

See Fed. R. Evid. 201(b);

A court

See St. Paul Fire & Marine Ins. Co. v. Cunningham, 257

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In any event,

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initiated by him against the entity and individuals he named in

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document request five served on Defendant San Diego County.

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The facts and circumstances surrounding Plaintiff's claims

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have not changed since this Court's Order denying his Motion to

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Compel against Defendants San Diego County, James Romo, and Peter

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Myers.

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of the discovery motion.

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reconsideration is DENIED.

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No new facts were discovered since the Court's disposition
Accordingly, the request for

Plaintiff’s Motion for Reconsideration also addresses

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Plaintiff’s failure to attend the May 6, 2014 settlement conference

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in this case.

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turns to that issue.

(Pl.’s Mot. Recons. 4-5, ECF No. 261.)

The Court

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B.

Order to Show Cause

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On March 8, 2013, the Court held an early neutral evaluation

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in this case.

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(Mins., Mar. 8, 2013, ECF No. 117.)

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Court issued a case management order setting a further settlement

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conference for October 8, 2013 [ECF No. 118].

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2013, the Court reset the conference for November 15, 2013 [ECF No.

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162].

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conference due to a schedule conflict and because the conditions of

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his criminal probation did not allow him to leave Riverside County

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[ECF No. 187].

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appeared telephonically on November 15, 2013.

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2013, ECF No. 200.)

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Plaintiff appeared telephonically at the conference.
Following the conference, the

On September 27,

Plaintiff sought leave to appear telephonically at the

The Court granted the request, and Plaintiff
(Mins., Nov. 15,

The Court scheduled a further mandatory in-person settlement
(Id.)

Plaintiff did not seek leave to

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conference for May 6, 2014.

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appear telephonically at the conference.

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At the time and date set

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for the settlement conference, Plaintiff failed to appear.

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Consequently, the Order to Show Cause for Plaintiff’s failure to

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attend was issued [ECF No. 256].

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Plaintiff’s response to the Court’s Order to Show Cause states

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that he had no knowledge of the May 6, 2014 mandatory settlement

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conference because he never received notice from the Court. (Pl.’s

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Reply Judge Brooks[’] May 6, 2014 Mins. 2-3, ECF No. 258.)

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claims that he was not provided notice of “numerous” other court

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orders in the past.

(Id. at 3 n.2.)

Hupp

Plaintiff acknowledges that

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he received the Court’s voicemail message asking him to contact the

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Court.

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that night.

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settlement conference date set for September 5, 2014, and requests

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to appear telephonically.

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He claims, however, that he did not receive it until 6 p.m.
(Id. at 2.)

Plaintiff acknowledges the next

(Id. at 3.)

Defendants did not file any reply to the Order to Show Cause.

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Considering Plaintiff’s pro se status and that he may not have

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received the November 15, 2013 minutes setting the May 6, 2014

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mandatory settlement conference, the Order to Show Cause is

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discharged.

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without prejudice.

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the scheduled date for the conference and may seek to appear by

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telephone based on then-existing facts.

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//

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//

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//

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//

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//

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//

Hupp’s request to appear telephonically is denied
Plaintiff may resubmit his request closer to

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II. CONCLUSION

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For the reasons stated above, the Court DENIES Plaintiff’s

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Motion for Reconsideration [ECF No. 261].

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[ECF No. 256] is discharged.

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IT IS SO ORDERED.

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Dated:

June 24, 2014

______________________________
Ruben B. Brooks
United States Magistrate Judge

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cc:

The Order to Show Cause

Judge Curiel
All Parties of Record

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I:\Chambers Brooks\CASES\1983\HUPP0492\Mot for Reconsideration & OSC\Order 5.wpd

12cv0492 GPC(RBB)