Committee for Immigrant Rights of Sonoma County et al v. County of Sonoma et al

REPLY to Response to Motion re MOTION for Protective Order ;REQUEST TO RESOLVE THRESHOLD DISCOVERY ISSUES RE APPLICABILITY OF IQBAL

N.D. Cal.July 15, 2009

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH THOMAS F. BERTRAND, State Bar No. 056560 RICHARD W. OSMAN, State Bar No. 167993 BERTRAND, FOX & ELLIOT The Waterfront Building 2749 Hyde street San Francisco, CA 94109 Telephone: (415) 353-0999 Facsimile: (415) 353-0990 E-mail: rosman@bfesf.com STEVEN M. WOODSIDE State Bar No. 58684 County Counsel ANNE L. KECK, State Bar No. 136315 Deputy County Counsel County of Sonoma 575 Administration Drive, Room 105 Santa Rosa, California 95403-2815 Telephone: (707) 565-2421 Facsimile: (707) 565-2624 E-mail: akeck@sonoma-county.org Attorneys for Defendants County of Sonoma, Sheriff-Coroner William Cogbill, Deputy Sheriff Morris Eric Salkin UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA COMMITTEE FOR IMMIGRANT RIGHTS OF SONOMA COUNTY, et al., Plaintiffs, v. COUNTY OF SONOMA, et al., Defendants. / Discovery Matter No. CV-08-4220-PJH COUNTY DEFENDANTS’ REPLY RE MOTION FOR PROTECTIVE ORDER; REQUEST TO RESOLVE THRESHOLD DISCOVERY ISSUES RE APPLICABILITY OF IQBAL Date: July 29, 2009 Time: 9:00 a.m. Place: Courtroom 3, 17th Floor Judge: The Honorable Phyllis J. Hamilton Defendants the County of Sonoma, Sonoma County Sheriff-Coroner William Cogbill, and Deputy Sheriff Morris Eric Salkin (collectively, “County Defendants”) hereby submit their Reply to Plaintiffs’ Opposition to County Defendants’ Motion for Protective Order (Docket No. 99). In addition, County Defendants also request that the Court resolve threshold discovery issues regarding the applicability of Iqbal v. Ashcroft [129 S.Ct. 1937 (May 18, 2009)] to preclude Plaintiffs from compelling discovery until they have satisfied their pleading obligations under Federal Rule of Civil Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page1 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 For example, County Defendants did not raise immunity defenses in their Motion to Dismiss due to the guesswork the Complaint would require in this regard. (See transcript of April 22, 2009, hearing, Exhibit “C’ to the accompanying Declaration of Anne L. Keck in Support of County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues Re Applicability of Iqbal (“Keck Declaration”), TR. at p. 54.) County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH2 Procedure (“FRCP”) Rule 8. This latter request is made pursuant to FRCP Rules 1 and 26(c)(1), for the purpose of securing the just, speedy and inexpensive determination of this discovery issue. I. INTRODUCTION The Supreme Court’s recent decision in Iqbal v. Ashcroft [129 S.Ct. 1937 (May 18, 2009)] stands for the proposition that Plaintiffs must satisfy their pleading obligations under Rule 8 before they can compel Defendants to provide additional discovery in this case. The posture of this case is also significant, as Defendants have challenged the sufficiency of allegations relating to all causes of action contained in Plaintiffs’ Complaint through their Motions to Dismiss and Motion for More Definite Statement, which remain submitted with the Court (hereinafter, the “Submitted Motions”). In addition, at the hearing on the Submitted Motions held on April 22, 2009, the Court expressed its intent to require Plaintiffs to amend their Complaint due to its lack of specificity and uncertainty. Indeed, the Complaint is so deficient that County Defendants are unable to determine which claims are alleged by which Plaintiffs against which Defendants, thus preventing them from identifying which defenses to raise in a motion to dismiss or otherwise.1 The poor state of the Complaint also prevents County Defendants from determining the appropriate scope and limits of discovery, as it is unclear which, if any, of Plaintiffs’ causes of action would or could survive, and what the remaining Complaint will allege. Plaintiffs argue that they are entitled to obtain discovery from Defendants to enable them to plead causes of action against County Defendants. Indeed, it now appears that Plaintiffs do not now, nor did they ever, have knowledge of sufficient facts to allege claims against County Defendants. At the very least, Iqbal precludes Plaintiffs from conducting just this type of fishing expedition under the guise of discovery to obtain facts to re-formulate the conclusory and speculative allegations contained in their Complaint. Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page2 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 See “Plaintiffs’ Motion to Compel County Defendants’ Production of Documents in Response to Plaintiffs’ Request for Production (Set One) and Deposition of County of Sonoma Pursuant to Fed.R.Civ.P. 30(b)(6),” Docket No. 102, filed on July 8, 2009, set for hearing on August 12, 1009. County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH3 Despite both written and oral attempts to resolve how and to what extent the Iqbal decision applies to Plaintiffs’ discovery demands in this case, the parties have been unable to reach a resolution. [See Keck Declaration, ¶¶2-7.] Since the filing of the instant Motion, Plaintiffs have now filed a motion to compel against County Defendants, set for hearing on August 12, 2009, which raises the applicability of Iqbal as a threshold issue.2 Further, as discussed during a meet and confer process, the parties expect a third discovery motion to be filed regarding the applicability of Iqbal to discovery Plaintiffs seek from the Federal Defendants. Indeed, if Iqbal does act as a temporary bar to discovery, neither County Defendants nor Federal Defendants should be required to respond to any of Plaintiffs’ discovery requests or motions to compel, pending Plaintiffs’ satisfaction of Rule 8 requirements. Accordingly, County Defendants request that the Court resolve the threshold issues of Iqbal’s applicability to this case in connection with their Motion, which will obviate the need to resolve duplicative and redundant discovery motions that are waiting in the wings. The threshold issues can be described as follows: 1. Under the Iqbal v. Ashcroft decision, and in light of the pending motions to dismiss and motion for more definite statement, can Plaintiffs require/compel Defendants to provide discovery before Plaintiffs satisfy their Rule 8 pleading obligations? 2. If the answer to question number 1 is "no", then at what point can Plaintiffs require/compel Defendants to provide discovery? With respect to the first issue, County Defendants believe that Iqbal precludes Plaintiffs from requiring or compelling County Defendants to provide additional discovery until Plaintiffs have satisfied their pleading obligations under Rule 8, which will allow the parties to determine the relevant scope of discovery. As to the second issue, Plaintiffs should be permitted to proceed with discovery requests only after their Complaint is no longer subject to challenge on the grounds of sufficiency (i.e., either upon expiration of the time to file responsive motions and in the absence of such motions, or upon the filing of an answer by the defendant against whom discovery is sought). Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page3 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 See Keck Declaration, Exhibit “C”, TR. at p. 55. 4 In their Opposition, Plaintiffs also raise numerous claims that County Defendants have not responded to their requests for production of documents. County Defendants object to those allegations, as they are unjustified and unjustifiable. However, because they are irrelevant for the purposes of the instant motion for protective order, they shall not be addressed herein. County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH4 II. LEGAL DISCUSSION A. Under Iqbal, Plaintiffs Cannot Require/Compel Defendants to Provide Discovery Before Plaintiffs Satisfy Their Rule 8 Pleading Obligations County Defendants believe the ruling in Iqbal is clear and unambiguous: Plaintiffs are required to satisfy their pleading obligations under Rule 8 prior to obtaining discovery from Defendants. (Iqbal v. Ashcroft, 129 S.Ct. 1937, 1953-1954 (May 18, 2009).) The posture of this case is also significant, as the Court has indicated its belief that Plaintiffs failed to satisfy their Rule 8 pleading obligations, as the Complaint is deficient and lacks specificity.3 In addition, County Defendants anticipate that the Court will resolve legal issues in connection with the Submitted Motions that will preclude Plaintiffs from pursuing several of their causes of action. For these reasons, the mandates of Iqbal prevent Plaintiffs from compelling County Defendants to provide additional discovery at this time. The only case County Defendants found that interprets Iqbal’s impact on a discovery dispute is an unpublished decision out of the United States District Court for the District of Utah, Central Division, styled Albion International, Inc. v. American International Chemical, Inc., slip copy, 2009 WL 1505285 (D. Utah, May 28, 2009). In that case, the District Court found that a plaintiff could not obtain discovery for claims relating to false advertising with respect to certain mineral products, as those claims were based on mere conclusory allegations about those products. Relying on Iqbal, the Court held that it “does not believe that Albion’s [plaintiff’s] bare allegation alone can ‘unlock the doors of discovery.’” (Id., at p. 2.) Despite the fact that this rationale appears to apply with equal force to the instant case, Plaintiffs argue Iqbal does not apply to them based on its dissimilar facts. In addition, they argue that they should be permitted to compel Defendants to provide discovery before they meet their pleading obligations, to allow them to meet their pleading obligations.4 To support their position, Plaintiffs Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page4 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH5 posit four arguments. A review of those arguments demonstrate that Plaintiffs should be precluded from conducting further discovery at present, based on the following. 1. County Defendants Should Not be Required to Expend Public Resources in Responding to Discovery Until Plaintiffs have Satisfied Rule 8 Plaintiffs appear to argue that County Defendants have not demonstrated a specific prejudice or harm that would result if the requested protective order was not granted. [Opposition, 4:11-13.] As stated in County Defendants’ moving papers, they will suffer undue burden and incur unnecessary costs if required to respond to discovery on illusory claims - which results in a misuse and waste of public resources. The burden and expense of responding to discovery is more than sufficient to demonstrate good cause for the protective order sought herein. In fact, the Supreme Court in Twombly expressly recognized that defendants should not be required to expend resources in responding to discovery requests regarding factual issues unless plaintiffs have first alleged a cause of action upon which relief could be granted. (Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1966-1967 (2007).) In addition, the possibility that plaintiffs could extract “an in terrorem increment of the settlement value” due to the time and expense of responding to discovery also serves as a justification for first requiring Plaintiffs to meet their pleading obligations prior to allowing them to compel discovery. (Id.) In the instant case, Plaintiffs’ Amended Notice of Deposition calls for at least 10 county witnesses, and its related document production request seeks 55 categories of documents (one with as many as 28 sub-parts), from July 17, 2003, to the present. The burden and high cost incurred in responding to these extraordinarily broad requests (and attempting to resolve disputes regarding them) is particularly troubling during the current economic and budgetary crisis. To require County Defendants to expend vast resources to respond to Plaintiffs’ discovery requests when Plaintiffs have failed to meet even the minimum pleading standards would be inequitable. 2. Plaintiffs Will Not Suffer Prejudice in Delaying Their Requested Discovery Pending Satisfaction of Their Pleading Obligations Under Rule 8 Plaintiffs argue that the harm in delaying discovery outweighs the possibility that dispositive motions would ultimately eliminate the need for discovery. [Opposition, 4:18-25.] Yet, Plaintiffs do not identify any harm or prejudice that would result to them if discovery were delayed pending their satisfaction of Rule 8 requirements. Indeed, the rule announced in Iqbal focuses on the sufficiency of Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page5 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH6 Plaintiffs’ Complaint, rather than the nature of the dispositive motions, as being the factor that would trigger discovery: if Plaintiffs have not complied with Rule 8 to sufficiently allege a cause of action, they are not entitled to discovery. (Iqbal, 129 S.Ct. at 1953-1954.) As Plaintiffs do not claim that a delay in discovery will prejudice them, the balance of the equities weighs strongly in favor of requiring them to satisfy their pleading obligations before allowing them to compel further discovery. 3. The Factual Circumstances of Iqbal Do Not Render it Inapplicable to the Instant Case Plaintiffs also argue that the facts and circumstances present in Iqbal are so different from those of the instant case that it is simply inapplicable herein. In other words, Plaintiffs argue that the standards the Iqbal Court discussed are only applicable to cases that are factually or procedurally similar to those present in Iqbal. Plaintiffs fail to mention that the Iqbal Court addressed this very issue with respect to the applicability of the Twombly case to non-antitrust cases, and rejected it. Specifically, the Court stated: Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute. [cite omitted] This argument is not supported by Twombly and is incompatible with the Federal Rules of Civil Procedure. Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. [cite omitted] That rule in turn governs the pleading standard “in all civil actions and proceedings in the United States district dourts.” Fed. Rule Civ. Proc. 1. Our decision in Twombly expounded the pleading standard for “all civil actions” Ibid., and it applies to antitrust and discrimination suits alike. [cite omitted] (Iqbal, 129 S.Ct. at 1953.) Likewise, the pleading and discovery standards announced in Iqbal do not apply (and were not intended to apply) only to cases that are factually or procedurally identical to that case, but were intended to be general standards applicable “in all civil actions and proceedings in the United States district courts.” (Fed. Rule Civ. Proc. 1.) A brief review of the plethora of cases that have cited and relied on Iqbal since its issuance demonstrates that it is applicable to all types of cases, including ours. Nevertheless, Plaintiffs proceed to argue the rule of law announced in Iqbal does not apply to the instant case because it is factually dissimilar in four ways. [Opposition, 5:8-12, et seq.] While County Defendants believe the factual context of Iqbal is not determinative, a review of the issues Plaintiffs raise demonstrates Iqbal’s applicability herein: Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page6 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Office of the Sheriff is part of the executive branch of the government, over which the Governor is the supreme executive power. (Cal. Const. Art. V, § 1.) 6 This issue was discussed at the April 22nd hearing. (See Keck Declaration, Exhibit “C”, TR. at p. 54 .) 7 In addition, Plaintiffs claim that Iqbal is distinguishable because it sought only damages, rather than injunctive relief. Plaintiffs thus argue that the Rule 8 pleading obligations differ depending on whether the claim is for damages or injunctive relief. Once again, such an argument is unpersuasive as it runs afoul of Federal Rule of Civil Procedure 1, as pleading obligations apply to all civil actions. County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH7 a. Iqbal involved two high-level officials. Plaintiffs allege that Iqbal is distinguishable because it involved two high-ranking government officials. In the instant case, Plaintiffs have sued Sonoma County Sheriff-Coroner William Cogbill, both in his official as well as his personal capacity. Sheriff Cogbill is the highest ranking law enforcement officer of the County of Sonoma.5 Unlike the officials sued in the Iqbal case, Sheriff Cogbill is an elected official, serving at the will of the People of Sonoma County. Though Deputy Sheriff M. Eric Salkin is not an elected official, he acts under the Office of Sheriff. (See Cal. Govt. Code §§ 7, 24100.) b. Iqbal was decided in the context of an unprecedented national and international security emergency. Plaintiffs make much out of the fact that the Iqbal Court spoke about the “unprecedented” context in which the case was brought. Similarly, in the instant case, Plaintiffs challenge the Sheriff Department’s law enforcement efforts to fight gang crime. The Court may take judicial notice of the unprecedented increase in gangs and gang violence throughout the State of California, and the disturbing increase of the Mexican Mafia’s influence in the United States. The increasing influence of gangs and gang violence is a matter of local, national, and international significance, and requires an ever- increasing number and types of law enforcement resources to address. c. The two defendants in Iqbal sought a dismissal of all damages claims. County Defendants did not seek a dismissal of all claims against them in their Motion to Dismiss. This was due to the fact that the Complaint was so deficient, County Defendants did not want to speculate on what claims Plaintiffs were attempting to make. For this reason, County Defendants instead brought a Motion for More Definite Statement to challenge the sufficiency of all claims in the Complaint.6 Yet, the type of responsive motion Defendants brought is immaterial, as both Twombly and Iqbal focus on the sufficiency of plaintiffs’ allegations in the complaint, rather than the nature of the responsive motion. Once Plaintiffs articulate allegations against County Defendants sufficient to allow a response, County Defendants expect to move the Court to dismiss all claims. d. The defense was grounded in claims of qualified immunity. Plaintiffs appear to argue that the type of defense raised in a motion to dismiss somehow limits their pleading obligations under Rule 8 and applicability of Iqbal.7 Nothing could be farther from the truth: both Twombly and Iqbal declared that plaintiffs must first comply with their pleading obligations to state a sufficient claim for relief - the type of defense that could be asserted is thus immaterial. In addition, as stated Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page7 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH8 at the April 22nd hearing, County Defendants shall move to dismiss based on grounds of qualified immunity once Plaintiffs allege a more certain complaint. 4. Plaintiffs Should Not Be Permitted to Compel Discovery for the Purpose of Allowing Them to Satisfy Their Rule 8 Pleading Obligations Plaintiffs argue that County Defendants’ pending Motion for More Definite Statement should not act to delay discovery in the case. Plaintiffs cite to the case of Famolare, Inc. v. Edison Brothers Stores, Inc.[525 F.Supp. 940 (E.D. Cal. 1981)] in support of their argument that they are entitled to obtain discovery for the very purpose of allowing them to bolster their defective Complaint. Plaintiffs reliance on Famolare is misplaced, as it merely stands for the proposition that a plaintiff is not required to plead all facts that may be relevant to a properly-plead cause of action, as the defending party may obtain facts during discovery. (Famolare, 525 F.Supp. at 949.) Based on the arguments presented, it now appears that Plaintiffs do not have knowledge of facts sufficient to allege a cause of action against County Defendants, and did not possess such facts at the time they filed their lawsuit. Without providing any specifics, Plaintiffs admit that “the information regarding Plaintiffs’ claims is almost exclusively in the hands of Defendants.” [Opposition, 9:9-10.] While County Defendants have produced almost 3000 pages of documents to Plaintiffs in this action, Plaintiffs apparently claim that they are still unable to formulate a cause of action against County Defendants. Accordingly, County Defendants request that the Court require Plaintiffs to satisfy their pleading obligations under Rule 8 before requiring County Defendants to expend more time and resources in responding to Plaintiffs’ extensive discovery demands. This request is consistent with Supreme Court mandates, and serves the public interest: Thus, it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery ..., but quite another to forget that proceeding to antitrust discovery can be expensive. As we indicated over 20 years ago in Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528, n. 17, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.” (Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1966-1967.) Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page8 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County Defendants’ Reply re Motion for Protective Order; Request to Resolve Threshold Discovery Issues USDC Case No. CV-08-4220 PJH9 B. Plaintiffs May Require/Compel Defendants to Provide Discovery Only After They Have Satisfied Their Rule 8 Pleading Obligations While the circumstances of this case demonstrate that Plaintiffs should not be entitled to compel Defendants to provide additional discovery at this time because they have not met their Rule 8 pleading obligations, the more difficult question is, at what time do they become entitled to discovery? In light of the particular context of this case, it appears that Plaintiffs should be allowed to open the doors to discovery after the time to file a responsive motion has passed and in the absence of such a motion, or the time at which a defendant against whom discovery is sought files an answer. Should circumstances change such that this discovery trigger becomes inequitable, a party may move the Court for a modification by demonstrating good cause. III. CONCLUSION Based on the foregoing, County Defendants respectfully request that the Court enter the following order: (a) the decision in Iqbal serves to prevent Plaintiffs from requiring/compelling discovery from Defendants until they have satisfied their pleading obligations under Rule 8, which serves to stay Plaintiffs’ discovery requests (including but not limited to the Amended Notice of Deposition to the County of Sonoma) and pending Motion to Compel; (b) Plaintiffs may proceed with discovery after the time to file a responsive motion has passed and in the absence of such a motion, or the time at which a Defendant against whom discovery is sought files an answer; and (c) for such other and further relief as this Court deems just and proper. Dated: July 15, 2009 Respectfully submitted, Stephen M. Woodside, County Counsel By___s/s Anne L. Keck______________ Anne L. Keck Deputy County Counsel BERTRAND, FOX & ELLIOT By___s/s Richard W. Osman___________ Richard W. Osman Attorneys for Defendants the County of Sonoma, Sheriff- Coroner William Cogbill, and Deputy Sheriff Morris Eric Salkin Case4:08-cv-04220-PJH Document105 Filed07/15/09 Page9 of 9