Borden v. Bare ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 CHLOE PSALM JERI BORDEN, CASE NO. 1:20-cv-01103-AWI-EPG 8 Plaintiff, ORDER ON PLAINTIFF’S OBJECTION 9 v. AND REQUEST TO STRIKE DEFENDANTS’ MOTION FOR 10 DEPUTY ETHAN BARE; DEPUTY SUMMARY JUDGMENT JEREMY MALICOAT, 11 Defendants. (Doc. No. 24) 12 13 14 Pending before the Court is Plaintiff Chloe Psalm Jeri Borden’s Objection and Request to 15 Strike Defendants Deputy Ethan Bare and Deputy Jeremy Malicoat’s Motion for Summary 16 Judgment (Doc. No. 24). 17 Plaintiff argues that Defendants’ motion for summary judgement violated Local Rule 18 133(j) and therefore should be stricken because Defendants failed to lodge paper or electronic 19 complete copies of the depositions referenced in their motion “prior to or upon the filing of” their 20 motion.1 Defendants filed their motion for summary judgment on May 2, 2022 (Doc. No. 23) and 21 their notice of lodging deposition transcripts on May 3, 2022 (Doc. No.25). In response, 22 Defendants contend that their motion for summary judgment should not be stricken because the 23 24 1 Eastern District of California Local Rule 133(j) provides: 25 Depositions shall not be filed through CM/ECF. Before or upon the filing of a document making reference to a deposition, counsel relying on the deposition shall ensure that a courtesy hard copy of the entire deposition 26 so relied upon has been submitted to the Clerk for use in chambers. Alternatively, counsel relying on a deposition may submit an electronic copy of the deposition in lieu of the courtesy paper copy to the email 27 box of the Judge or Magistrate Judge and concurrently email or otherwise transmit the deposition to all other parties. Neither hard copy nor electronic copy of the entire deposition will become part of the official record 28 of the action absent order of the Court. Pertinent portions of the deposition intended to become part of the 1 timing of their notice of lodging did not prejudice Plaintiff and they otherwise complied with Rule 2 133(j) by submitting complete paper copies of the depositions to the Court and by attaching as 3 exhibits the pertinent portions of the depositions to their motion for summary judgment. 4 Judge Drozd of this District reviewed a substantially similar issue regarding an alleged 5 violation of Rule 133(j) in Jessen v. Cty. of Fresno, 2019 U.S. Dist. LEXIS 2722 (E.D. Cal. Jan. 5, 6 2019). In Jessen, the defendants filed a motion for summary judgment on September 18, 2018 and 7 their notices of lodging deposition transcripts over two months later on November 20 and 21, 8 2018. Jessen, 2019 U.S. Dist. LEXIS 2722 at *31. The plaintiffs contended that the summary 9 judgment motion should be denied because it violated Rule 133(j). Id. at *30. Judge Drozd 10 rejected the plaintiffs’ argument on three grounds. First, Local Rule 133(j) does not require 11 defendants to provide plaintiffs with a copy of the entire deposition if the entire deposition is 12 submitted to the Court in hard copy. Id. at *31 (citing Woodson v. Sahota, 2016 U.S. Dist. LEXIS 13 24104, 2016 WL 758722, at *3 (E.D. Cal. Feb. 26, 2016) and Boyd v. Etchebehere, 2017 U.S. 14 Dist. LEXIS 66090, 2017 WL 1632887, at *1 (E.D. Cal. May 1, 2017)); see also Cannon v. 15 Gallagher, 2021 U.S. Dist. LEXIS 128462, *5 (E.D. Cal. July 8, 2021); Benanti v. Matevousian, 16 2019 U.S. Dist. LEXIS 198710, *2 (E.D. Cal. Nov. 15, 2019). Second, “to the extent that 17 defendants failed to provide the court with paper copies of the entire deposition transcripts before 18 or upon the filing of their motions for summary judgment, defendants thereafter lodged paper 19 copies of the deposition transcripts with the court, and have otherwise complied with Local Rule 20 133(j) by attaching the pertinent portions of depositions as exhibits to their motions.” Jessen, 2019 21 U.S. Dist. LEXIS 2722 at *31-*32 (internal citations omitted). Finally, the plaintiffs did not show 22 or contend that “they were prejudiced by defendants’ purported non-compliance with the local 23 rule.” Id. at *32 (citing Barry v. Bishop, 623 F. App’x 436, 438 n.10 (9th Cir. 2015) (“To the 24 extent that Barry now asserts that we should reverse for an alleged violation of Eastern District of 25 California Local Rule 133(j), we disagree. . . . Barry has not shown any prejudice arising from the 26 claimed violation.”)). 27 Here, as in Jessen, the Court will deny Plaintiff’s request to strike Defendants’ motion for 28 summary judgement. Defendants were not required to provide Plaintiff with complete copies of 1 |the depositions referenced in their motion because they submitted complete paper copies of the 2 | depositions to the Court. Cannon, 2021 U.S. Dist. LEXIS 128462 at *5; Benanti, 2019 U.S. Dist. 3 | LEXIS 198710 at *2; Jessen, 2019 U.S. Dist. LEXIS 2722 at *31. Additionally, Defendants 4 | lodged the deposition transcripts with the Court one day after they filed their motion for summary 5 | judgment, and they attached the pertinent portions of depositions as exhibits to their motion. See 6 Jessen, 2019 U.S. Dist. LEXIS 2722 at *31-*32. Furthermore, Plaintiff has not shown nor 7 |contended any prejudice from the one day delay in filing the notice of lodging. See Barry, 623 F. 8 | App’x at 438 n.10; Jessen, 2019 U.S. Dist. LEXIS 2722 at *32 (finding no prejudice was 9 |demonstrated despite a two month delay in filing the notice of lodging). Thus, consistent with 10 | Jessen, the Court will deny Plaintiffs request to strike Defendants’ motion for summary 11 | judgement. 12 13 ORDER 14 Accordingly, IT IS HEREBY ORDERED that Defendants’ request to strike Defendants’ 15 motion for summary judgment (Doc. No. 24) is DENIED. 16 IT IS SO ORDERED. 1g |Dated: _ May 12, 2022 7 Zz : Z Cb Led "SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28