Paredes Nino et al v. United States Customs and Border Protection et al

Filing 91

ORDER. It is hereby ordered that the United States' Motion for Exclusionary Sanctions is granted. The United States shall submit a Supplemental Brief in Support of its Motion for Summary Judgment on or before March 26, 2018; Plaintiffs shall submit a Response to the United States Supplemental Brief on or before April 9, 2018; and the United States shall submit a Reply to Plaintiffs' Response on or before April 16, 2018. The United States' Motion for Summary Judgment, see ECF No. 84, will remain pending while the parties submit supplemental briefing. Signed by Judge William Q. Hayes on 3/9/2018. (jao)

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UNlTED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MAYRA PAREDES NINO,
individually and as wife of
decedent Jose Alfredo Yanez
Reyes; and JY and RY, minors,
by Mayra Paredes Nino, their
guardian ad !item,

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Case No.: 13-cv-0469-WQH-BGS
ORDER

Plaintiffs,

v.
UNlTED STATES OF
AMERICA,
Defendant.

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HAYES, Judge:

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The matter before the Court is the Motion for Summary Judgment and Exclusionary

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Sanctions (ECF No. 84) filed by Defendant United States of America.

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I.

Background

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On May 11, 2016, Plaintiffs Mayra Paredes Nino, JY, and RY filed the Third

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Amended Complaint (the "TAC") (ECF No. 67) against Defendant United States of

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America. The TAC brings claims for wrongful death and emotional distress stemming

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from an incident during which Border Patrol Agent Dorian Diaz allegedly shot and killed

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Jesus Alfredo Yafiez Reyes ("Yafiez") near the border of the United States and Mexico.

13-cv-0469-WQH-BGS

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TAC at iii! 64-73. On October 16, 2017, the United States filed the Motion for Summary

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Judgment and Exclusionary Sanctions (ECF No. 84). 1 On October 18, 2017, the Court

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issued an Order (ECF No. 86) vacating the dates that had been set for the final pretrial

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conference and the filing of the parties' proposed final pretrial conference order. On

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November 6, 2017, Plaintiffs filed an Opposition to the Motion for Summary Judgment

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and Exclusionary Sanctions. (ECF No. 87). On November 13, 2017, the United States

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filed a Reply in Support of the Motion for Summary Judgment and Exclusionary Sanctions.

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(ECF No. 88). 2 The Court held oral argument on the Motion for Summary Judgment and

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Exclusionary Sanctions (ECF No. 84) on February 28, 2018. (ECF No. 90).

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II.

Motion to Exclude

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A.

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Plaintiffs' counsel executed a document titled Plaintiffs' Initial Disclosures FRCP

Background

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26(a)(l) on October 13, 2016.

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eighteen sources of documentary evidence. Id. at 5-6. Plaintiffs' Initial Disclosures do

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not reference Maria Del Socorro Quintero Perez et al.

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13-cv-1417-WQH-BGS ("Perez"), another case involving Yafiez's death. See id.

(ECF 87-13).

Plaintiffs' Initial Disclosures identify

v.

Fisher et al.,

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On November 3, 2016, United States Magistrate Judge Bernard G. Skomal issued a

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Scheduling Order (ECF No. 76) setting discovery deadlines in this case. The Scheduling

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Order stated

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The parties shall designate their respective experts in writing by March
17, 2017. The parties must identify any person who may be used at trial to
present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. Evid. This
requirement is not limited to retained experts ....

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The United States attached a Request for Judicial Notice (ECF No. 84-4) to the Motion for Summary
Judgment and Exclusionary Sanctions (ECF No. 84). The Request for Judicial Notice (ECF No. 84-4) is
GRANTED.
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The United States attached a Motion to Strike Evidence Offered in Plaintiffs' Opposition (ECF
No. 88-2) to its Reply in Support of the Motion for Summary Judgment and Exclusionary Sanctions (ECF
No. 88). The Motion to Strike Evidence Offered in Plaintiffs' Opposition (ECF No. 88-2) is DENIED
without prejudice.
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By May 5, 2017, each party shall comply with the disclosure
provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil
Procedure. . . . [A]ny party that fails to make these disclosures shall not,
absent substantial justification, be permitted to use evidence or testimony not
disclosed at any hearing or at the time of trial.
(ECF No. 76 at 2). The United States contends, and Plaintiffs do not dispute, that Plaintiffs
"failed to designate any expert witnesses, and they failed to serve any expert reports." ECF
No. 84-1 at 11; see ECF No. 87.
The United States served Plaintiffs with a document titled Requests for Production
of Documents to Plaintiff Mayra Paredes Nino on January 10, 2017. (ECF No. 84-5 at
197-206).

Plaintiffs' counsel executed a document titled Responses to Requests for

Production of Documents to Plaintiff Mayra Paredes Nino on March 3, 2017. Id. at 207220. Plaintiffs' Responses to Requests for Production states that Plaintiffs support their
claims with "[a]ll previously propounded discovery devises (including deposition
transcripts) existing in the companion Perez case." Id. at 208. The United States contends,
and Plaintiffs do not dispute, that Plaintiffs only actually produced three documents:
Yafiez's autopsy report and the birth certificates of JY and RY. See ECF No. 84-1 at 11;
ECFNo. 87.
The docket reflects that the United States has not filed any motions to compel the
production of evidence.
Plaintiffs attached the following evidence concernmg Yafiez's death to their
Opposition to the Motion for Summary Judgment and Exclusionary Sanctions (ECF No.
87): a declaration executed by Plaintiffs' counsel (ECF No. 87-1), four depositions taken
in Perez (ECF Nos. 87-2, 87-3, 87-4, and 87-10), pictures of a border patrol agent produced
in Perez (ECF No. 87-5), two expert reports submitted in Perez (ECF Nos. 87-6 and 87-8),
and a memorandum from the Chief of the Border Patrol on the "Use of Safe Tactics and
Techniques" also produced in Perez (ECF No. 87-11).

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B.

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The United States contends that Plaintiffs should be barred from submitting evidence

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in opposition to the Motion for Summary Judgment and Exclusionary Sanctions (ECF No.

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84) and at trial, citing Federal Rules of Civil Procedure 26, 34, and 37; Local Rule 83.1;

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case law; and the Scheduling Order (ECF No. 76). (ECF No. 84-1 at 11-17). Plaintiffs

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contend that they should not be barred from submitting evidence because their failure to

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produce additional evidence was harmless. ECF No. 87 at 6 ("[N]o conceivable issue of

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prejudice exists."). Plaintiffs contend that their failure to produce additional evidence was

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harmless because the evidence that they seek to introduce is in the possession of the United

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States and they "advised [the United States] on a consistent basis of their intent to use Perez

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discovery for [this] case." Id. at 4. Plaintiffs also contend that they should not be barred

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from submitting evidence because (1) "[the United States] never engaged in any compliant

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'meet and confer' process in making discovery demands," id.; (2) less extreme remedies

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are available, id. at 6; and (3) "Plaintiffs were substantially justified in economizing on

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deliveries in order to avoid double expenditure of time, effort and money with the Perez

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group," id. at 7.

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C.

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Under Federal Rule of Civil Procedure ("Rule") 26(a)(l)(A)(ii),

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[A] party must, without awaiting a discovery request, provide to the other
parties a copy-or a description by category and location-of all documents,
electronically stored information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.

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Contentions

Applicable Law

Rule 26(a)(2) provides that "a party must disclose to the other parties the identity of any
witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or
705 [and] ... this disclosure must be accompanied by a written report."
Rule 34 provides that parties served with a request for production can respond by
either (1) "stat[ing] that inspection and related activities will be permitted as requested,"
(2) "stat[ing] with specificity the grounds for objecting to the request," or (3) "stat[ing] that

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it will produce copies of documents or of electronically stored information instead of

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permitting inspection." Id. at 34. "The production must then be completed no later than

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the time for inspection specified in the request or another reasonable time specified in the

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response." Id.

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Rule 37(b)(2)(A)(ii) provides that "If a party ... fails to ... provide or permit

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discovery ... the court ... may ... prohibit[] the disobedient party ... from introducing

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designated matters in evidence." Under Rule 37(c)(l),

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If a party fails to provide information ... as required by Rule 26(a) or ( e), the
party is not allowed to use that information ... to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.

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United States District Court Southern District of California Local Rule 83 .1 provides that

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"Failure of counsel or of any party to comply with ... the Federal Rules of Civil or Criminal

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Procedure . . . may be grounds for imposition by the court of any and all sanctions

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authorized by statute or rule or within the inherent power of the court ...."

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D.

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Rule 26(a)(2)(A) provides that "a party must disclose to the other parties the identity

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of any witness it may use at trial to present evidence under Federal Rule of Evidence 702,

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703, or 705." Rule 26(a)(2)(B) requires "this disclosure [to] be accompanied by a written

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report." The Scheduling Order stated

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Analysis

By May 5, 2017, each party shall comply with the disclosure provisions in
Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure .... [A]ny
party that fails to make these disclosures shall not, absent substantial
justification, be permitted to use evidence or testimony not disclosed at any
hearing or at the time of trial.
(ECF No. 76 at 2). The United States contends, and Plaintiffs do not dispute, that Plaintiffs
"failed to designate any expert witnesses, and they failed to serve any expert reports." ECF
No. 84-1 at 11; see ECF No. 87. Plaintiffs contend that they "were substantially justified
in economizing on deliveries in order to avoid double expenditure of time, effort and
money with the Perez group." (ECF No. 87 at 7) The Court finds that Plaintiffs' effort to

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1 minimize expenditures do not qualify as "substantial justification" for their failure to
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comply with Rule 26(a)(2). (ECF No. 76 at 2). Accordingly, the Court excludes the Expert

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Report of David E. Balash (ECF No. 87-6) and the Expert Report of Jack Smith (ECF

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No. 87-8).

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Under Rules 26(a)(l)(A)(ii) and 37(c)(l), the Court must exclude evidence that a

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party seeks to introduce to support its claims (and not for impeachment) ifthe party had

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that evidence in its possession and did not provide it to the opposing party or describe it by

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category and location in its initial discovery disclosure, unless the party's failure to do so

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was substantially justified or harmless. See Fed. R. Civ. P. 26(a)(l)(A)(ii), 37(c)(l). The

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Court finds that Plaintiffs' failure to produce the evidence from Perez, or describe it by

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category and location in their initial discovery disclosure was harmless considering the

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evidence from Perez was already in the possession of the United States and Plaintiffs

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informed the United States that they intended to use that evidence. See ECF No. 84-5 at

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208. Accordingly, the Court denies the United States' motion to exclude evidence under

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Rule 37(c)(l).

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Under Rule 37(b)(2)(A)(ii), the Court may exclude Plaintiffs' evidence based on

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their failure to produce it. See Fed. R. Civ. P. 37(b )(2)(A)(ii). However, the Court is not

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required to do so. See id. The United States does not dispute that it is in the possession of

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much of the evidence that Plaintiffs seek to introduce as a result of the discovery

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proceedings in Perez. Plaintiffs informed the United States that they intended to introduce

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this evidence in their Responses to the United States' Requests for Production. (ECF No.

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84-5 at 208). Furthermore, the United States has not filed any motions to compel. The

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Court declines to exercise its discretion to exclude any evidence under Rule 37(b)(2)(A)(ii).

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III.

Motion for Summary Judgment

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The United States moves for summary judgment on the grounds that "[b]ased on

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Plaintiffs' failure to conduct discovery or designate any experts ... any evidence Plaintiffs

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may wish to present in opposition should be excluded under Federal Rules of Civil

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Procedure 26, 34 and 37," and therefore "[Plaintiffs] will be unable to raise a triable issue
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1 of fact with respect to the reasonableness of Agent Diaz's actions[] or the applicability of
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the [Federal Tort Claims Act ("FTCA's")] foreign country exception." (ECF No. 84 at 2).

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The Court has granted the United States' motion to exclude the Expert Reports of David

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E. Balash and Jack Smith (ECF Nos. 87-6, 87-8), and denied it in all other respects. See

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Part II, supra. Accordingly, the United States is not entitled to summary judgment on the

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grounds that Plaintiffs will not be able to raise any triable issues of fact because all of the

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evidence that Plaintiffs wish to present is excluded.

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The United States also moves for summary judgment on the grounds that "[t]he

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Court's factual findings made in the Perez case support the dismissal of this entire action

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based on the fact Agent Diaz's use of force against Yanez was reasonable." (ECF No. 84

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at 2). The Court granted summary judgment in Perez after analyzing the evidence on the

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record in Perez and concluding that "whether [the plaintiffs' Bivens] action should be

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allowed is a decision for the Congress to make, not the courts" and that Diaz was entitled

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to qualified immunity. Perez, ECF No. 201. The Court did not make any findings of fact

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in Perez that would bind the parties in this case. Accordingly, the United States is not

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entitled to summary judgment based on the Court's decision in Perez.

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The United States also moves for summary judgment on the grounds that the

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evidence in this case establishes that (1) Diaz's use of force was reasonable and (2) the

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foreign country exception to the FTCA bars Plaintiffs' claims. The Court finds that

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supplemental briefing on these issues is necessary at this stage of the proceeding.

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IV.

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Conclusion

IT IS HEREBY ORDERED THAT:

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(l)the United States' Motion for Exclusionary Sanctions, see ECF No. 84, is GRANTED

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in that the Expert Report of David E. Balash (ECF No. 87-6) and the Expert Report of

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Jack Smith (ECF No. 87-8) are HEREBY EXCLUDED and DENIED in all other

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respects.

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(2)the parties shall submit supplemental briefing on whether the United States is entitled
to summary judgment based on the evidence in the record in this case as follows:
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(a) the United States shall submit a Supplemental Brief in Support of its Motion for
Summary Judgment on or before March 26, 2018;

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(b) Plaintiffs shall submit a Response to the United States Supplemental Brief on or
before April 9, 2018; and

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( c) the United States shall submit a Reply to Plaintiffs' Response on or before April

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16, 2018.
(3)the United States' Motion for Summary Judgment, see ECF No. 84, will remain pending
while the parties submit supplemental briefing.

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DATED:
WILLIAM Q. HA
United States Di 1ct Judge

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