Opinion
CASE NO. CV 02 -1331 RMT (MANx)
June 2, 2003
This matter comes before the court on the motion filed on March 5, 2003 by Defendant Gregory Gaione (hereinafter "Defendant") for review and reconsideration of the ruling of Magistrate Judge Margaret Nagle denying Defendant's ex parte application for an order staying discovery, or in the alternative, to stay the deposition of Defendant. The court, having considered the pleadings and other papers filed in this matter, now determines:
The Magistrate Judge's decision to deny Defendant's ex parte application to stay discovery, or in the alternative, to stay the deposition of Defendant on the anticipated filing of additional papers is not clearly erroneous or contrary to law. A defendant is entitled to a ruling on a dispositive motion based on immunity before the commencement of discovery. Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982) ("Until th[e] threshold immunity question is resolved, discovery should not be allowed.11); Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1989) (affirming stay in constitutional tort action pending resolution of motion for summary judgment of immunity issue). At the time the Magistrate Judge issued the March 3, 2002 order denying the ex parte application, no motion raising an immunity defense was filed. A summary judgment motion raising the issue of absolute immunity was first filed on March 3, 2003, after Defendant's ex parte application was denied earlier that day. Defendant's second summary judgment motion raising the issue of qualified immunity was filed on May 5, 2003. Absent a motion filed by Defendant raiding an immunity defense prior to the denial of Defendant's ex parte application, the Magistrate Judge's ruling was not contrary to law.
Although Defendant may believe he now has a basis for a stay because of the pending summary judgment motions raising an immunity defense, that issue is not before this court and is a matter more properly raised before the Magistrate Judge.
Accordingly,
IT IS ORDERED that Defendant's motion for review and reconsideration of the ruling of Magistrate Judge denying Defendant's ex parte application for an order staying discovery, or in the alternative, to stay the deposition of Defendant is hereby DENIED.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY ADJUDICATION ONLY AS TO ISSUE OF PROSECUTION TERMINATING IN FAVOR OF PLAINTIFF This matter comes before the court on a motion filed on September 30, 2002 by Plaintiff Anthony Hart for summary judgment or summary adjudication of issues. The court, having considered the pleadings and other papers filed in this matter, now determines:Relevant Law
A. Standard for Motion for Summary Judgment
On a motion for summary judgment, the court must determine whether there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). The moving party has the burden of showing the absence of a genuine material fact.Adickes v. S.H. Kress and Co., 398 U.S. 144, 157 (1970). The motion may be granted only if the court decides that a rational trier of fact would not be able to find in favor of the party opposing the motion, Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party may point to the record to show an absence of evidence only if he does not have the burden of proof at trial.Celotex Corp, v. Catrett, 477 U.S. 317r 322 (1985). If, however, the moving party does bear the burden of proof, he must provide an affirmative showing that the evidence does not exist, Id. at 323.
B. Bivens Claim Under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), a plaintiff states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment. Plaintiff brings a Fourth Amendment claim for baseless prosecution on the grounds that he was prosecuted without probable cause.Albright v. Oliver, 510 U.S. 266 (1994).
Courts generally apply the same law in Bivens actions as they apply to 42 U.S.C. § 1983 actions. Van Strum v. Lawn, 940 F.2d 406, 409-10 (9th Cir. 1994); Antoine v. Byers Anderson. Inc., 950 F.2d 1471, 1473 (9th Cir. 1991).
Analysis
A. Defendant's Entire Declaration Will Not Be Stricken Merely Because The Date Is Incomplete
Plaintiff Anthony Hart (hereinafter "Plaintiff') objects to the admissibility of Defendant Gregory Gaioni's (hereinafter "Defendant") entire declaration because the date on the declaration is incomplete. Specifically, although the month and year were indicated, the exact day is left out. Nonetheless, because the declaration was faxed to the court, the faxed copy notes the exact date that the declaration was sent. In the interest of justice, the entire declaration should not be stricken for a minor clerical error that has no real bearing on the declaration's authenticity.
Plaintiff also makes a series of objections to the admissibility of various paragraphs of the declaration on the basis that they are not in compliance with the Federal Rules of Evidence. Because the paragraphs to which Plaintiff objects include only facts which are not relevant to the court's analysis, it is not necessary to consider their admissibility for the purpose of this motion.
B. Plaintiffs Counsel Made A Good Faith Attempt To Meet And Confer Pursuant To Local Rule 7-3
L.R. 7-3 requires that "counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution." This requirement, however, may be waived if the nonmoving party imposes unauthorized conditions on the meeting in order to hinder the filing of the motion. Rocha v. Baca, 2000 WL 1909474, 7 (C.D. Cal. Nov. 14, 2000).
Defendant argues that the motion for summary judgment is premature and should be stricken because the parties have not yet conferred pursuant to L.R. 7-3. However, Plaintiffs counsel contacted defense counsel on several occasions to schedule a conference but defense counsel refused to meet unless: 1) the meeting was held at defense counsel's office, 2) the meeting was reported by a court reporter, 3) the meeting was tape recorded, and 4) witnesses were permitted to be present, none of which were contemplated by L.R. 7-3. As a result, this motion for summary judgment should not be stricken for failure to comply with L.R. 7-3.
C. The Motion Should Be Denied Because There Are Genuine Disputes With Regard To Material Facts
Plaintiff moves the court for summary judgment or summary adjudication that: (1) Defendant initiated a baseless criminal prosecution against Plaintiff on a charge of falsely filling out a BATF gun purchase form; (2) there was no probable cause for said criminal charge; (3) the criminal charge was terminated in favor of Plaintiff by a jury verdict of acquittal; (4) Plaintiff was arrested in connection with the institution of the criminal charge; (5) Defendant is liable for Plaintiff's arrest without probable cause; and (6) each and all of the foregoing Defendant's conduct violated Plaintiffs federal rights. Although Plaintiff's motion seeks summary judgment, it only addresses his Fourth Amendment claim, and not his Fourteenth and Fifth Amendment claims as alleged in the complaint.
Genuine issues of material fact remain as to all elements of Plaintiff's baseless prosecution claim, except prosecution terminating in favor of plaintiff. Plaintiff asserts, and Defendant concedes, that a jury found Defendant not guilty of "knowingly making a false written statement intended to deceive a dealer or collector with respect to any fact material to the lawfulness of the sale or other disposition of a firearm." 18 U.S.C. § 922(a)(6).
Accordingly,
IT IS ORDERED that Plaintiffs motion for summary judgment is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiffs motion for summary adjudication is hereby GRANTED only as to the established fact and legal conclusion that the prosecution terminated in favor of plaintiff.