Opinion
No. 2:05-CV-00952-WBS-JFM.
November 21, 2006
JAMES M. MORRIS-SBN 48365, Stockton, California, Attorney for Defendant, California Ammonia Co.
Defendant California Ammonia Company ("Calamco") applies ex parte pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure for an order relieving defendant from the November 1, 2006 time limit for bringing motions for summary judgment contained in this Court's Order of August 4, 2005, so that defendant may augment its Motion for Summary Judgment Or In The Alternative Summary Adjudication, which was filed on October 18, 2006. The hearing on that motion is scheduled for December 11, 2006. The proposed augmentation consists of applying the arguments defendant put forth in its motion for partial summary judgment as to plaintiff's First Cause of Action to plaintiff's Fourth Cause of Action. A copy of the proposed amended Motion is attached as Exhibit "A". Those portions of the amended Motion that differ from the original motion are highlighted in yellow.
Leave to file the augmented motion should be granted because, as shown by the Declaration of James Morris, counsel for defendant Calamco, the failure to include the Fourth Cause of Action in the original filing was caused by mistake, inadvertence, or excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure.
Dated: November 9, 2003 /s/ James M. Morris Defendant _____________________________ JAMES M. MORRIS, Attorney for California Ammonia Company
MEMORANDUM OF POINTS AND AUTHORITIES
Rule 60(b)(1) of the Federal Rules of Civil Procedure provides for relief from a judgment or order on the ground of mistake, inadvertence, or excusable neglect. Primarily the rule is invoked in order to set aside a default judgment. In the present case all defendant seeks is relief from the time limit imposed by this Court's order of August 4, 2005, requiring that all motions for summary judgment or summary adjudication in the above-captioned case be filed by November 1, 2006, so that defendant may add the Fourth Cause of Action to its motion for summary adjudication.
There will be no prejudice to plaintiff for two reasons: First, the legal arguments with respect to the Fourth Cause of Action are the same as those already included in the motion directed to the First Cause of Action; there are no additional points and authorities to which plaintiff must respond. Second, plaintiff was advised by defendant on November 2, 2006 — just one day after the November 1 time limit had passed — that defendant had inadvertently failed to include the Fourth Cause of Action in its motion and in Section IV.3 of its supporting Memorandum of Points and Authorities. This motion is not scheduled to be heard until December 11, 2006, with plaintiff's response not due until November 22, 2006.
The court has discretion to grant the defendant's motion. Generally, in such a case, relief has been granted. In Sierra Club v. Union Oil Co. of California, 813 F.2d 1480 (9th Circuit 1987) the court held that a delay in offering an amendment to a complaint did not justify denying leave to amend where the defendant was on notice of facts contained in the amendment, and thus was not prejudiced, citing William Inglis Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014, 1053 (9th Cir. 1981) and Buder v. Merrill Lynch, Pierce, Fenner Smith, 644 F.2d 690, 694 (9th Cir. 1981). Cases where relief has not been granted present more serious instances of neglect than the one at issue here. See, for example, Northwest Environmental Advocates v. U.S.E.P.A., 268 F. Supp.2d 1255 (D. Oregon 2003). There leave to amend a complaint was denied where the motion was filed four months after motions for summary judgment were filed, five weeks after the completion of briefing, the new claims were not related to the current pleadings, and the amendment would vastly expand the scope of the litigation.
Here, defendant is seeking leave to add a cause of action to its motion for summary adjudication, but is not seeking leave to add additional grounds or authorities. Since plaintiff was advised on November 2, 2006, that defendant wished to include the Fourth Cause of Action in its motion already filed, and indeed on November 6, 2006 was sent the exact the wording that defendant wished to add to the motion, there can be no claim of prejudice.
Further, because the legal arguments with respect to the allegations contained in the First and Fourth Causes of Action are the same, it is a matter of judicial economy to allow defendant to include the Fourth Cause of action in its motion. Because the two causes of action are so similar — the First alleges unlawful non-stormwater discharges, and the Fourth alleges unlawful discharges of contaminants — a decision by this court with respect to the legal issues involved in the First Cause of Action will of necessity apply to the Fourth, as a ruling on partial summary judgment is the rule of the case for the issues decided. See United States v. Horton, 622 F.2d 144 (5th Cir. 1980).
Because the inadvertence committed by defendant is minor; because there is no pattern of inadvertence or neglect by defendant's counsel; because no additional facts, arguments, or authorities involved in the augmentation of its motion as sought by defendant; because relief is sought so soon after the passing of the deadline set out in the court's order; because there is no prejudice to the plaintiff; and because in any event as a matter of law the court's ruling on the First Cause of Action would be the law of the case with respect to the First Cause of Action, defendant Calamco seeks the permission of this court to file the revised Motion as attached hereto.
Dated: November 9, 2006. /s/ James M. Morris ______________________________ JAMES M. MORRIS, Attorney for Defendant California Ammonia Company
DECLARATION OF JAMES M. MORRIS IN SUPPORT OF MOTION FOR RELIEF
I, James M. Morris, declare:1. I am licensed to practice before the above-entitled Court and as such am counsel for defendant herein. I make this declaration based on my personal knowledge, and if called upon as a witness would and could testify competently to the matters stated herein.
2. As counsel for defendant I had always intended to move for partial summary judgment on both the First and Fourth Causes of Action, as both causes allege unlawful discharges under the Clean Water Act, and the legal arguments with respect to why summary judgment should be granted on the two causes of action are the same.
3. The arguments with respect to the First Cause of Action are the same as for the Fourth Cause of Action. Defendant has no additional arguments with respect to the Fourth Cause of Action. No additional declarations or statements of undisputed facts are necessary. No additional points and authorities are necessary. What applies to the First applies to the Fourth.
4. Somehow, in formulating the arguments and putting the motion together, I neglected to include the Fourth Cause of Action in defendant's motion and in Section IV.3 of its Memorandum of Points and Authorities in support thereof.
5. This is a large and complicated action, which has been diligently litigated by both sides. This is the first and only such inadvertence committed by defendant in this action.
6. Defendant's motion, already filed, is meritorious with respect to the First Cause of Action. Since the allegations in plaintiff's Fourth Cause of Action are substantially the same as in the First, giving rise to the same legal arguments — that in both plaintiff has failed to allege or offer facts to prove what the "receiving water" is, a necessary element for liability under the Clean Water Act, and that plaintiff has failed to allege that exceedances of pollutants have occurred in the receiving water — defendant's motion as applied to the Fourth Cause of Action is meritorious as well.
7. Motions for summary judgment under this Court's order were due on November 1, 2006. Defendant filed its on October 18. On November 2, 2006, I realized that the Fourth Cause of Action had not been included in the motion filed October 18, 2006, and advised plaintiff by letter dated November 2, 2006, both that this inadvertence had occurred and that the grounds for the motion and the arguments in support thereof were the same as to the Fourth as they were as to the First. Attached hereto as Exhibit "B" is a true and correct copy of that letter.
8. I spoke with counsel for plaintiff on Monday, November 6, 2006. I explained what had occurred and asked that plaintiff stipulate to allow defendant to supplement its motion. I then sent a proposed stipulation to plaintiff's counsel. A true and correct copy of my e-mail message and the proposed stipulation are attached hereto as Exhibit "C". Plaintiff's counsel declined to stipulate, necessitating this application.
9. Plaintiff will not be prejudiced by the supplement. It need not respond to any further declarations or points of law. On the other hand, defendant will be prejudiced if its counsel's inadvertence does not allow it to argue the same points of law pertaining to both the First Cause of Action and the Fourth Cause of action.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed this 8th day of November, 2006, at Stockton, California.
/s/ James M. Morris ________________________ JAMES M. MORRIS, Declarant
ORDER
Based upon the foregoing Application and Declaration of James M. Morris, plaintiff having taken no position on defendant's request, and good cause appearing, it is ordered as follows:Defendant, California Ammonia Co., may augment its Motion for Summary Judgment Or In The Alternative Summary Adjudication in the manner set forth in Exhibit "A" to the Declaration of James M. Morris set forth above.