Ocampo v. United States of America et al

Filing 56

ORDER Remanding Plaintiff's Motion for an Order Compelling Defendant to Provide an Opportunity for Another Inspection. It is Ordered: (1) Plaintiff's motion to compel is remanded to Judge Gallo to consider Plaintiff's new argument in determining whether Plaintiff's interest in inspecting the elevator platform a second time outweighs the burden to Defendant. (2) Plaintiff shall notify the Court of Judge Gallo's ruling and whether she renews her objection and motion to set aside based upon the ruling no more than seven (7) days after Judge Gallo issues his ruling. (ECF No. #47 ). Signed by Judge John A. Houston on 3/6/2017. Motions set before William V. Gallo.(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ANAKAREN LOPEZ, as personal representative of SALOMON RODRIGUEZ, 13 14 15 16 Case No.: 15cv00180 JAH-WVG ORDER REMANDING PLAINTIFF'S MOTION FOR AN ORDER COMPELLING DEFENDANT TO PROVIDE AN OPPORTUNITY FOR ANOTHER INSPECTION [Doc. No. 47] Plaintiff, v. UNITED STATES OF AMERICA, et. al. Defendants. 17 18 AND RELATED CROSS CLAIM. 19 20 21 Pending before the Court is Plaintiff’s motion to set aside the magistrate judge’s 22 September 30, 2016 order denying her request for a second inspection. Defendant opposes 23 Plaintiff’s motion. Upon a thorough review of the parties’ submissions, the Court finds it 24 appropriate to remand Plaintiff’s request for an order compelling Defendant to provide 25 Plaintiff another opportunity to inspect the subject elevator platform at the flight deck level. 26 BACKGROUND 27 On January 27, 2015, Damaris Manzanero Vazquez, appearing as the personal 28 representative of Salomon Rodriguez, filed a complaint against United States of America 1 15cv00180 JAH-WVG 1 and National Steel and Shipbuilding Company (“NASSCO”). On November 23, 2015, 2 Anakaren Lopez, appearing as the personal representative of Salomon Rodriguez, filed a 3 First Amended Complaint (“FAC”), seeking damages for negligence. Plaintiff Lopez 4 alleges Defendants’ negligence caused Salomon Rodriguez to fall off the unguarded side 5 of an elevator platform approximately 98 feet down an elevator trunk while working aboard 6 the USS Boxer in navigable waters at Pier 13, Naval Station, San Diego, California. FAC 7 ¶¶ 11 - 21. Plaintiff asserts, as the decedent’s personal representative, she is entitled to 8 recover on behalf of Mr. Rodriguez’s minor son. Id. ¶ 26. 9 10 Defendant United States filed an answer and cross claim against Defendant NASSCO, and NASSCO filed an answer to the FAC and an answer to the crossclaim. 11 Plaintiff’s counsel and experts were given the opportunity to inspect the elevator at 12 issue. Plaintiff served a second request to inspect the elevator and Defendant United States 13 objected. The Honorable William Gallo, United States Magistrate Judge, conducted a 14 telephonic discovery conference and directed the parties to file a joint statement with their 15 respective position. 16 Plaintiff’s request to inspect the elevator a second time. On September 30, 2016, Judge Gallo issued an order denying 17 Plaintiff objects to Judge Gallo’s order and seeks an order setting aside the 18 September 30, 2016 order and compelling Defendant to provide Plaintiff the opportunity 19 to inspect the subject elevator platform at the flight deck level as it was on the day Mr. 20 Rodriguez fell to his death and to observe the aft door open and the aft ramp deployed to 21 determine whether such a configuration could have prevented the tragedy. 22 STANDARD OF REVIEW 23 A party may object to a non-dispositive pretrial order of a magistrate judge within 24 fourteen days after service of the order. Fed. R. Civ. P. 72(a). The magistrate judge’s 25 determination of such matters is entitled to deference unless it is clearly erroneous or 26 contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). 27 The “clearly erroneous” standard applies to the magistrate judge’s factual 28 determinations and discretionary decisions. Grimes v. City and County of San Francisco, 2 15cv00180 JAH-WVG 1 951 F.2d 236, 240 (9th Cir.1991) (discretionary non-dispositive pre-trial matters by 2 magistrate judge are reviewable for clear error); Maisonville v. F2 Am., Inc., 902 F.2d 746, 3 748 (9th Cir. 1990) (factual determinations made in connection with sanction award are 4 reviewable for clear error). This standard requires “a definite and firm conviction that a 5 mistake has been committed.” Security Farms v. Intern. Broth. of Teamsters, 124 F.3d 6 999, 1014 (9th Cir. 1997). 7 The “contrary to law” standard applies to review of purely legal determinations by 8 a magistrate judge. See, e.g., Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992) 9 (“the phrase ‘contrary to law’ indicates plenary review as to matters of law.”); Medical 10 Imaging Centers of America, Inc. v. Lichtenstein, 917 F.Supp. 717, 719 (S.D.Cal. 1996) 11 (“Section 636(b)(1). . .has been interpreted to provide for de novo review by the district 12 court on issues of law). “An order is contrary to law when it fails to apply or misapplies 13 relevant statutes, case law, or rules of procedure.” Jadwin v. County of Kern, 767 14 F.Supp.2d 1069, 1110-11 (E.D. Cal. 2011) (citing DeFazio v. Wallis, 459 F.Supp.2d 159, 15 163 (E.D.N.Y. 2006)). 16 17 DISCUSSION A. Judge Gallo’s Order 18 The parties submitted a joint statement for determination of the discovery dispute to 19 Judge Gallo. The United States objected to the second inspection on the ground the request 20 was unreasonably cumulative, duplicative and the information sought could be obtained 21 from another, more convenient, less burdensome source. Defendant maintained Plaintiff 22 previously inspected the elevator at a safe level, possessed photographs of the elevator 23 taken on the day of the incident and detailed drawings and measurements of how it existed 24 on the day of the incident, and possessed blueprints and operational, maintenance and 25 safety instructions for the elevator. Defendant also maintained Plaintiff’s request was 26 unduly burdensome because it would require a significant amount of manpower and the 27 need to employ and pay a contractor to install fall protection. 28 3 15cv00180 JAH-WVG 1 Plaintiff argued the second inspection was necessary for her to prove a critical theory 2 of liability. Plaintiff’s theory is the decedent’s fall was caused by the gap between the 3 elevator platform and the flight deck as it was configured 98 feet above ground, and she 4 argued, the only way to know whether the configuration caused the tragedy was to “1) 5 measure the gap space for themselves; 2) see what visual cues the decedent saw while on 6 the platform that would have indicated to him his proximity to the ledge; and 3) determine 7 whether fall arrested systems were feasible at that height given the platform’s proximity to 8 other objects at that deck level.” Joint Statement (Doc. No. 40) at 8. She further argued 9 the importance of inspecting the platform as it was on the date of the incident outweighed 10 any burden to Defendant. She asserted any burden was minimal because Navy personnel 11 would not be inconvenienced from more than an hour and the cost would be minimal given 12 the Navy’s operating budget. 13 Judge Gallo found Defendant would suffer a certain degree of burden but not so 14 great as to preclude Plaintiff’s request outright. Addressing each of Plaintiff’s three 15 reasons for the request, Judge Gallo also found Plaintiff made a minimal showing of need, 16 if any, to inspect the elevator platform a second time in the raised position. Judge Gallo 17 then applied the balancing test of Belcher v. Bassett Furniture Industries, Inc., 588 F.2d 18 904 (4th Cir. 1978), and determined the burden imposed on Defendant outweighs 19 Plaintiff’s stated interest in inspecting the elevator platform a second time. 20 B. Plaintiff’s Objection 21 Plaintiff maintains she was denied access to all relevant parts of the elevator during 22 the first inspection. Specifically, she alleges there is an aft door on the elevator shaft at the 23 flight deck level, and when the aft door is opened a ramp lowers down which Plaintiff 24 believes would have covered the opening through which Mr. Rodriguez fell to his death. 25 She contends counsel and his experts were given an opportunity to inspect the elevator on 26 January 27, 2016, but on a rush basis and were only permitted to inspect the elevator at the 27 bottom of the shaft. She further contends they were not permitted to inspect the platform 28 or the aft ramp at the flight deck level, the aft door and aft ramp of cargo weapons elevator 4 15cv00180 JAH-WVG 1 no. 3 on the USS BOXER at the flight deck level. Additionally, she maintains they have 2 not been provided equivalent photographs, and have never been allowed to inspect the hole 3 through which Mr. Rodriguez fell. Plaintiff maintains the failure to lower the ramp is 4 critical to how the accident occurred and critical to Plaintiff’s liability arguments. 5 Plaintiff argues Judge Gallo’s order denying the inspection is clearly erroneous 6 because it misses one of Plaintiff’s material purposes for the inspection, to determine 7 whether or not the aft door, which exists only at the flight deck level, when open and 8 deploying its aft ramp, would have, with the aft ramp, sufficiently covered the opening 9 through which Mr. Rodriguez fell to his death and thereby prevented his death. She 10 maintains determining whether Defendants could have taken reasonable steps, such as 11 lowering the aft ramp to save Mr. Rodriguez’s life, is the whole reason for this litigation 12 and refusing her counsel access to the aft ramp will have the effect of reducing her case to 13 speculation. She argues Judge Gallo’s ruling is clearly erroneous because it fails to 14 contemplate that this inspection could determine whether or not opening the aft door at the 15 flight deck level and lowering the aft ramp could have covered the hole sufficiently to 16 prevent the decedent from falling to his death. 17 Plaintiff further argues the order is contrary to law because it fails to liberally 18 construe discovery requests and balance relative interests as mandated by the Federal Rules 19 of Civil Procedure. 20 21 In opposition, Defendant agues the Court should ignore Plaintiff’s new argument raised for the first time in objection and deny Plaintiff’s motion on that basis. 22 Defendant further argues, even if the Court considers the merits of Plaintiff’s 23 objection, Judge Gallo’s order is neither erroneous nor contrary to law because Judge Gallo 24 did not misapply the applicable discovery statute or relevant case law. 25 maintains it allowed Plaintiff’s counsel and experts to thoroughly inspect, measure and 26 photograph the subject elevator platform while it was at a safer level. Additionally, 27 Defendant maintains it provided Plaintiff with diagrams, measurements, and photographs 28 of the elevator as it was on the day of the incident. Defendant contends Judge Gallo applied Defendant 5 15cv00180 JAH-WVG 1 the applicable discovery statutes and relevant case law and determined Plaintiff did not 2 make a minimal showing of need to inspect the elevator platform a second time at the flight 3 deck level. 4 outweighed Plaintiff’s stated interest in conducting a second inspection was not erroneous 5 nor contrary to law. Defendant argues Judge Gallo’s finding that the United States’ burden 6 In reply, Plaintiff contends a district court has full discretion to consider arguments 7 made for the first time in a parties’ objection to a magistrate judge’s decision. She further 8 contends the arguments made before Judge Gallo and before this Court are similarly 9 intertwined because both are made pursuant to Federal Rule of Civil Procedure 34. She 10 argues finding out whether the death could have been prevented if the government 11 deployed the aft ramp, could make a material difference in the outcome of this case. She 12 maintains the first inspection of the site was a “take it or leave it” inspection at the spur of 13 the moment, and argues the government should not act surprised and indignant when an 14 inspection under these circumstances is not good enough to provide the Plaintiff with the 15 discovery she is entitled to under the Federal Rules of Civil Procedure. Plaintiff contends 16 the argument offered to this Court, although not previously made before Judge Gallo is not 17 so different as to be considered “out of left field” and, is potentially material to the outcome 18 of a case that is itself of the utmost importance. Therefore, she argues, this Court may 19 exercise its discretion to hear this new argument favoring the first inspection of the elevator 20 platform at the flight deck level. 21 Plaintiff further argues she makes a clear showing that one key theory of liability 22 can be proven based on the evidence gathered at a second site inspection conducted 23 properly. 24 C. Analysis 25 Plaintiff raises a new argument in support of her request for a second inspect that 26 she did not raise before Judge Gallo. This Court has the discretion to consider Plaintiff’s 27 new argument raised for the first time in her objection. See United States v. Howell, 231 28 F.3d 615, 621 (9th Cir. 2000). However, the Court finds it inappropriate to determine 6 15cv00180 JAH-WVG 1 whether Judge Gallo’s order denying Plaintiff’s motion to compel was clearly erroneous 2 or contrary to law when Judge Gallo was not provided an opportunity to address the new 3 argument raised by Plaintiff. The Court, notwithstanding, declines to deny the motion on 4 that basis and will, instead, remand the issue to provide Judge Gallo an opportunity to 5 address the new argument. 6 CONCLUSION AND ORDER 7 Based on the foregoing, IT IS HEREBY ORDERED: 8 1. 9 10 11 Plaintiff’s motion to compel is remanded to Judge Gallo to consider Plaintiff’s new argument in determining whether Plaintiff’s interest in inspecting the elevator platform a second time outweighs the burden to Defendant. 2. Plaintiff shall notify the Court of Judge Gallo’s ruling and whether she renews 12 her objection and motion to set aside based upon the ruling no more than seven (7) days 13 after Judge Gallo issues his ruling. 14 DATED: 15 16 17 March 6, 2017 _________________________________ JOHN A. HOUSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 7 15cv00180 JAH-WVG

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