DeForest et al v. City of Ashland et al
Filing
115
Opinion and Order: Plaintiff's Motions for Sanctions [94-2] is DENIED. Defendants' associated request for attorney fees 102 is also DENIED. Please access entire text by document number hyperlink. Signed on 07/25/2016 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
CATHY DEFOREST, LEON PYLE, AND
EDWARD KERWIN,
Civ. No. 1: 11-cv-03159-CL
Plaintiffs,
OPINION AND ORDER
V.
CITY OF ASHLAND, ASHLAND GUN CLUB,
et al.,
Defendants.
CLARKE, Magistrate Judge.
Plaintiffs move for evidentiary sanctions under Federal Rule of Civil Procedure 37 (Dckt.
# 94-2), and move to strike of portions of defendants' declarations associated with summary
judgment proceedings. Dckt. # 110. Defendant the City of Ashland also requests attorney fees
pertaining to the matter. Dckt. # 102. For the reasons set forth below, Plaintiffs' motions are
DENIED. The City's request for attorney fees is also DENIED.
BACKGROUND
The Complaint was filed on December 23, 2011. Dckt. # 1. Plaintiffs served a Request
for Production on the Gun Club and City in early 2012. The parties had some early settlement
discussions, and Defendants produced some documents relating to lead reclamation and clean up.
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Plaintiffs did not file a Motion to Compel.
The Court vacated pretrial proceedings on August
25, 2013 to allow the parties to engage in further settlement talks. Dckt. #21. The attorneys and
parties attended numerous settlement conferences and mediations with a retired federal district
judge and a magistrate judge between March 2012 and November 2015. The Court would not
expect formal discovery to continue during the stay as the goal was to limit costs while a
settlement was sought.
Magistrate Judge Coffin scheduled a further settlement conference on
November 24, 2015, in Eugene. Dckt. #44. He had invited representatives from the Oregon
DEQ to participate.
Shortly before the conference, Plaintiffs' counsel indicated he and his
clients would not be attending due to inclement weather.
Plaintiffs instead filed and the court granted a Motion to return the case to active status on
November 25, 2015. (Dckt. # 46). Plaintiffs' counsel, rather than following up on or completing
any remaining discovery or filing any motions to compel, concurrently filed a Motion for
Summary Judgment.
Dckt. # 47.
Plaintiffs' Motion included numerous attachments and
exhibits. Dckt. # 48-61. On March 1, 2016, defendants responded and filed cross motions for
summary judgment (Dckt. # 73), with associated declarations with a relatively small number of
documents attached. Dckt. # 74-87, 91-92.
Plaintiffs then filed Notice and a concurrent Motion for Evidentiary Sanctions on March
15, 2016. Dckt. # 94-1, 94-2.
Plaintiffs' counsel alleges that, despite the case stay, the lead
reclamation and reuse information set out in the defendants declarations should have been
produced sooner as a supplement to the earlier discovery request by Plaintiffs.
The Court
agreed to take the matter under advisement during a May 17, 2016 telephone conference. Dckt.
#11.
Ill
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ANALYSIS
I.
Plaintiffs' Motion for Rule 37 Evidentiary Sanctions (Dckt. # 94-2)
a. Standards
Fed. R. Civ. P. 37(c)(l) addresses a party's failure to disclose or supplement discovery. The
rule states: "If a party fails to provide information or identify a witness as required by FRCP 26
(a) or (e), the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at trial, unless the failure was substantially justified or harmless." FRCP
37(c)(l). The rule is self-executing, but the court has discretion in imposing sanctions. Hoffman
v. Construction Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008).
Exclusion of
evidence is not mandatory in the Ninth Circuit; instead, the District Court has "particularly wide
latitude ... to issue sanctions under Rule 37(c)(l)." Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106 (9th Cir. 2001 ). This is because "evidence exclusion is, or at least
can be, a harsh sanction." R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1247 (9th Cir.
2012) (citing id.).
Award of additional sanctions under FRCP 37(c), such as attorney fees, is also discretionary.
Nat'! Hockey League v. Met. Hockey Club, Inc., U.S. 639 (1976); see also Yeti, 50 F.3d at 1106.
Here the court may consider the party's entire course of conduct throughout the proceedings.
See Commodity Futures Trading Comm 'n v. Noble Metals Int'!, Inc., 67 F.3d 766, 771-22 (9th
Cir 1995) (reviewing conduct of parties throughout discovery and preliminary proceedings in
allowing Rule 37 sanctions).
1. Gun Club Declarations
Plaintiffs assert that the Gun Club defendant failed to supplement discovery requests under
Fed. R. Civ. P. 26(e). Pls.' Mot. R. 37 Sanctions, p 4-5 (Dckt. #94-2). Plaintiffs' preamble
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infers that they challenge all of the Gun Club's declarations submitted in conjunction with
summary judgment motions.
Id. at 1.
However, the substance of plaintiffs' argument and
associated citations to the record address the Gun Club's discovery responses regarding lead
reclamation and recycling efforts only. Id. at 3-8; Pls.' Reply, pp. 2-6 (Dckt. # 107). The court
therefore restricts its review to these issues, as Plaintiffs neither identify nor develop further
arguments.
i.
Factual and Procedural History
In 2012, Plaintiffs sent the Gun Club requests for production relating to lead reclamation and
other matters. The Gun Club responded to Plaintiffs' First Request for Production ("RFP") on
May 22, 2013. Pls.' "Ex. 5" (Dckt. # 95-4 ). Pretrial motion deadlines were repeatedly vacated
and deferred throughout 2012, 2013, and 2014.
Plaintiffs now note that their 2012 RFP "made thirty-three requests," citing their own
"Exhibit 5." Pls.' Mot., 4 (Dckt. # 94-2).
On March 1, 2016, in responding to Plaintiffs'
November 2015 Motion for Summary Judgment, the Gun Club submitted numerous declarations.
Dckt. # 76-87. Plaintiffs now move to strike portions of the declarations submitted by Bill
Longiotti (Dckt. #83), Cory Longiotti (Dckt. #84), David Morris (Dckt. #85), Bob Morris (Dckt
# 86), Bob Smoot (Dckt. # 87) Brian Fuller (Dckt. #76), Ken Casteel (Dckt. #79), Chuck
Gettling, and Gary Peterson (Dckt. #78). Pls.' Mot. 6-9. Plaintiffs make no effort to describe to
the Court what information therein the Gun Club allegedly failed to produce.
In summary, the indicated declarations and associated exhibits state, in part, that Gun Club
members recalled lead reclamation efforts in the late 1970's, and describe the Gun Club's
detailed lead reclamation efforts between 2011 and 2015. Passim. The declaration of DEQ
employee Brian Fuller, dated February 22, 2016, additionally states that DEQ never issued the
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Gun Club a permit pertaining to the Resource Conservation and Recovery Act because DEQ
does not issue such permits for active shooting ranges. Deel. Fuller, p. 2 ~3 (Dckt. # 76).
ii.
Analysis
The Gun Club essentially asserts that Plaintiffs failed to pursue discovery on the issue.
Def. Gun Club's Resp., p. 3 (Dckt. #98).
It also states that it produced documents containing
information Plaintiffs now state they never received. Id. at 5.
The record now before this Court supports defendants' position. Plaintiffs rely upon one
indicated citation to its own RFPs in establishing that it requested the now-disputed material
addressing lead reclamation. Pls.' Mot., p. 4-5 (Dckt. #94-2) (citing Exhibit 5, supra).
As submitted, Exhibit 5 contains one RFP statement addressing lead reclamation. Pls.'
1
Ex. 5, pp. 6, 11 (Dckt. #95-4). The Gun Club's RFP response objected to characterization of
lead as "waste," but agreed to provide "documentation concerning its management practices on
the site." Id., p. 6 ~8. Plaintiffs do not now dispute this response.
The record shows that the Gun Club produced documents relating to lead reclamation in
2008, 2009, 2011, and 2012. Specifically, Gun Club counsel Joseph Kellerman states that he
produced the documents, and included copies of the Bates-stamped pages earlier produced. Deel.
Kellerman, p. 2
~3-4
(Dckt. #74).
Plaintiffs' Motion for Summary Judgment additionally
indicates that it was aware of the 2008 and 2009 efforts. Pls.' Mot. Summ. J., p. 5, 25 (Dckt.
#47).
Regarding its activities prior to this period, the Gun Club states that Plaintiffs could have
pursued additional discovery, via interrogatories or deposition, prior to filing their unannounced
Page 5 - OPINION AND ORDER
Motion for Summary Judgment on November 25, 2015. Def. Gun Club's Resp., 4 (Dckt. #98).
The Court agrees.
Further, sanctions under the rule do not apply if the proposed conduct was "substantially
justified." Fed. R. Civ. P. 37(c)(l). The Gun Club reasonably argues that this exception applies
to declarations produced in 2016 describing its 2015 reclamation activities because they did not
exist earlier in the discovery process. Def. Gun Club's Resp., 7-8 (Dckt. #98).
In summary, Plaintiffs' generalized argument that the Gun Club failed to supplement
discovery disclosures under FRCP 26( e), and consequently runs afoul of FRCP 3 7, is without
merit and unsupported.
2. City of Ashland Declarations
Plaintiffs' Motion for Sanctions pertaining to Fed. R. Civ. P. 37 also seeks discovery
sanctions against defendant the City of Ashland pertaining to declarations of Ashland Public
Works Superintendent Mike Morrison and City of Ashland associated legal counsel Sarah
Henderson. Pls.' Mot. p. 9-10 (Dckt. # 94-2).
i.
Declaration of Mike Morrison
Plaintiffs first assert that Mr. Morrison's declaration contains "quite a bit of information most of which," Plaintiffs argue, should have been produced in response to earlier requests for
production under Fed. R. Civ. P. 26. Id at 9.
In support of this assertion, Plaintiffs state only,
"information in #'s 4, 5, 6, 8, 9, 11, 13 all are [sic] responsive" to their requests for production.
Id This is an insufficient explanation.
The City replies that it responded to plaintiffs' requests, asking that plaintiffs specify the
meeting and meeting dates requested. Def. City's Resp., p. 3-6 (Dckt. # 102). The City attached
a complete copy of its response to these requests for production. Id. at Ex. A 3-8 (Dckt. #102,
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pp. 11-30). Plaintiffs do not now respond. Pls.' Reply (Dckt. # 107). The City's Exhibit shows
that its production response stated that it would provide any RCRA permits that existed. Ex. A,
p. 3. The City's production response also stated, repeatedly, that it would make requested City
committee meeting notes available for inspection following Plaintiffs' specification of "which
body's minutes they want to review" and specification of "the requested time period. Id. at 4-12,
15-16.
The City further replies that its meeting notes, now contested as evidence by Plaintiffs, are
matters of public record accessible by Plaintiffs.
Def. City's Resp., 3 (Dckt. #102).
Additionally, plaintiff Cathy DeForest was, in fact, present at the meetings described in the
exhibits.
Id.
Plaintiffs therefore had both knowledge of meeting discussions and access to
relevant documentation of these discussions. Id. at 6. The court agrees, and finds that any
alleged failure to disclose by the City under discovery protocol is therefore harmless.
ii.
Declaration of Sarah Henderson
Finally, Plaintiffs assert that the declaration of associated legal counsel to the City, Sarah
Henderson, also submitted by the City in conjunction with motions for summary judgment,
"should be stricken from the record as moot." Pls.' Mot. 10 (Dckt. # 94-2). Plaintiffs do not
articulate rationale for this request as it pertains to a Rule 37 motion, and instead theorizes that a
later Environmental Protection Agency ("EPA") advisory letter supersedes the EPA opinion
letter attached to Ms. Henderson's declaration. Id. The City responds that the letters may be
distinguished; the first, 1998, letter is in fact incorporated into the subsequent 1997 letter. Def.
City's Reply, 8 (Dckt. # 102).
This argument pertains to relevance. Such questions are the province of neither Fed. R. Civ.
P. 37 nor motions for summary judgment.
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See Burch v. Regents of the Univ. of Cal., 433
F.Supp.2d 1110, 1119 (E.D. Cal. 2006) (discussing limited utility of relevance objections in
preliminary motions and at summary judgment); see also Ambrose v. JB. Hunt Transport, Inc.,
No., 12-cv-1740, 2014 WL 585376, at *6 (D. Or. 2016)(Hubel, J).
Therefore, the Court declines to address the issue further at this juncture.
b. Conclusion: Motion for Sanctions
In summary, Plaintiffs fail to establish that the declarations above should be removed
from the record pertaining to summary judgment. Plaintiffs' motion and its associated requests
are therefore denied.
II.
Plaintiffs' Motion to Strike Declarations of Counsel (Dckt. #110)
While the above matter was pending before the Court, Plaintiffs filed an additional motion to
strike declarations of counsel to the Gun Club. Pls.' Mot. to Strike Deel. of Joseph Kellerman
and Eric Mitten (Dckt. # 110). The Court denies this motion as without merit.
III.
Defendant City of Ashland's Motion for Attorney Fees (Dckt. #102)
Finally, defendant the City of Ashland asks the Court to order Plaintiffs to pay its attorney
fees in responding to the matters above because "the motions are frivolous as a matter of law."
Def. City's Resp., p. 10 (Dckt. # 102). The court believes that most, if not all, of these discovery
disputes could have been informally resolved by the attorneys or, if needed, with court
assistance. However, Plaintiffs created a difficult procedural situation by immediately filing a
motion for summary judgement when the court indicated it would reschedule settlement
conferences due to inclement weather on November 23, 2015. Dckt. # 45. Although Plaintiffs
had the right to do so, and these motions can be an efficient way to resolve claims and save costs,
Plaintiff counsel could well have completed some brief remaining discovery before proceeding
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with dispositive motions.
The court however does not find bad faith or that the motion was
frivolous as a matter of law.
ORDER
For the reasons above, Plaintiffs' Motion for Sanctions (Dckt. #94-2) 1s DENIED.
Defendants' associated request for attorney fees (Dckt. #102) is also DENIED.
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