1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 COLFAXNET, LLC, No.2:19-cv-2167 WBS-CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE:

PLAINTIFF’S OBJECTIONS TO

15 CITY OF COLFAX, DISCOVERY ORDER OF MAGISTRATE

JUDGE DELANEY DATED AUGUST

16 Defendant. 19,2020 17 18 ----oo0oo---- 19 Plaintiff ColfaxNet, LLC (“Plaintiff”), brought this 20 action against Defendant City of Colfax (“Defendant”) alleging 21 violations of the Federal Telecommunications Act (“FTA”), 47 22 U.S.C. § 332(c)(7)(B) and 47 U.S.C. § 1455, and its implementing 23 regulations codified at 47 C.F.R. § 1600. Plaintiff seeks 24 declaratory and injunctive relief in the form of a court order 25 stating that the defendant violated the FCA and mandating that 26 the defendant issue the requisite permits for plaintiff to 27 proceed with the placement, construction, and/or modification of 28 the ColfaxNet wireless service facilities proposed in the 1 applications. (See generally Compl. (Docket No. 1).) Plaintiff 2 additionally requests that the court hear and decide this action 3 on an expedited basis pursuant to 47 U.S.C. § 332(c)(7)(B)(v).1 4 Before the court is the “Objection of Plaintiff ColfaxNet, LLC to 5 Discovery Order of Magistrate Judge dated August 19, 2020.” 6 (“Objections”) (Docket No. 31.) 7 I. Factual and Procedural Background 8 On October 25, 2019, plaintiff ColfaxNet, LLC, 9 (“Plaintiff”) brought this action against defendant City of 10 Colfax (“Defendant”) alleging violations of the Federal 11 Telecommunications Act (“FTA”), 47 U.S.C. § 332(c)(7)(B) and 47 12 U.S.C. § 1455, and its implementing regulations codified at 47 13 C.F.R. § 1600. Plaintiff alleges in its operative complaint that 14 the defendant: (i) did not act on plaintiff’s request to modify 15 an existing wireless communication facility within a reasonable 16 period of time, (ii) failed to draft a written denial of the 17 plaintiff’s request supported by a written record, (iii) 18 improperly considered radio frequency emissions in issuing the 19 denial of plaintiff’s request, (iv) unlawfully prohibited 20 plaintiff from providing service, and (v) unlawfully denied 21 plaintiff’s eligible facilities request. (See generally Compl. 22 (Docket No. 1).) 23 The parties filed a Rule 26(f) discovery plan on 24 February 18, 2020, which contemplated discovery cut-offs and 25

26 1 Plaintiff has not stated what time frame is required by the statute and has not cited any cases explaining what 27 “expedited review” means or the timeline anticipated in these cases. Defendant does not appear to have even acknowledged this 28 requirement. 1 limitations. Specifically, the parties expected to “propound up 2 to 20 each of Interrogatories, Requests for Admission, and 3 Requests for Production” and to “take up to eight percipient 4 witness depositions, including Party depositions, each.” (See 5 Joint Status Report at 3) (Docket No. 7.) The plan did not state 6 that the matter should be solely decided on the administrative 7 record. (See generally Joint Status Report.) 8 Defendant served plaintiff with requests for 9 written discovery on April 16, 2020. (Joint Statement Re: 10 Discovery Disagreement at 2 (“Joint Statement”) (Docket No. 25.) 11 Defendant served plaintiff with notices of deposition for the two 12 principals, Corey and Lynele Juchau, on May 6, 2020. 13 (Declaration of Mark Epstein in Support of Mot. to Compel at ¶ 4 14 (“Epstein Decl.”) (Docket No. 16).) After receiving two courtesy 15 extensions from defendant to respond to the written discovery, 16 plaintiff objected to each discovery request made by defendant. 17 (Id.) Nearly every objection included the following, or 18 substantially similar statement: “To the extent the request seeks 19 information beyond the administrative record that is subject to 20 review in this case, it is overbroad, unduly burdensome, and has 21 no relevance to the claims or defenses raised.” (See generally 22 id. at Ex. K–N.) Plaintiff’s counsel also informed defendant 23 that they wished to put off the depositions because the motion 24 for summary judgment would be dispositive and resolve the case 25 without the need for those depositions. (Id. at ¶ 9). 26 Defendant filed a Motion to Compel Plaintiff’s 27 Responses to Written Discovery, Production of Documents, and 28 Appearance at Deposition on July 10, 2020. (“Mot. to Compel”) 1 (Docket No. 15). The hearing on that motion was set for August 2 12, 2020 before Magistrate Judge Delaney. (See id.) Plaintiff 3 filed for summary judgment on August 3, 2020, more than three 4 weeks after defendant moved to compel discovery. (See Pl.’s Mem. 5 in Supp. of Summ. J (“MSJ”) (Docket No. 22-1).) 2 The parties 6 submitted their Joint Statement regarding the discovery dispute 7 only two days later, on August 5, 2020. (See generally Joint 8 Statement.) 9 On August 19, 2020, Judge Delaney issued an order 10 granting defendant’s Motion to Compel Discovery Responses and 11 ordering Plaintiff to respond to defendant’s written discovery 12 within 30 days and present ColfaxNet’s principals for deposition 13 within 90 days. (Order Granting Mot. to Compel Discovery 14 Responses at 10 (“Order”) (Docket No. 27).) Judge Delaney 15 awarded defendant’s attorney’s fees, ruling that “plaintiff 16 unreasonably and without justification refused to respond to 17 discovery in this matter.” (See Order at 9.) Plaintiff 18 requested reconsideration of Judge Delaney’s order on September 19 2, 2020. (See generally Objections.) Defendant replied to that 20 request on September 9, 2020. (See Df.’s Opp. to Pl.’s 21 Objection/ Request for Reconsideration of Discovery Order (“Reply 22 to Objections”) (Docket No. 34).) 23 II. Discussion 24 A party seeking reconsideration of the Magistrate 25

26 2 Plaintiff ColfaxNet has not moved for summary judgment on two counts in their complaint (denial not based on substantial 27 evidence and effective prohibition of wireless service.) (See Reply Brief of Plaintiff ColfaxNet, LLC in Support of Motion for 28 Summary Judgment at 2) (Docket No. 30).) 1 judge’s ruling shall file a request for reconsideration by a 2 Judge and serve the Magistrate Judge and all parties. See Loc. 3 R. 303(c). Such request shall specifically designate the ruling, 4 or part thereof, objected to and the basis for that objection. 5 Id. “The standard that the assigned Judge shall use in all such 6 requests is the ‘clearly erroneous or contrary to law’ standard 7 set forth in 28 U.S.C. § 636(b)(1)(A).” See Loc. R. 303(f); See 8 Fed. R. Civ. P. 72(a). 9 Federal Rule of Civil Procedure 26(b)(1) states that 10 unless otherwise limited by court order, “parties may obtain 11 discovery regarding any nonprivileged matter that is relevant to 12 any party’s claim or defense and proportional to the needs of 13 the case.” Fed. R. Civ. P. 26(b)(1). Information within the 14 scope of discovery “need not be admissible in evidence to be 15 discoverable.” Id. The Court is vested with broad discretion 16 to manage discovery. See Hunt v. County of Orange, 672 F.3d 17 606, 616 (9th Cir. 2012); Survivor Media, Inc. v. Survivor 18 Prods., 406 F.3d 625, 635 (9th Cir. 2005). 19 First, plaintiff claims that the Magistrate Judge 20 focused solely on ColfaxNet’s contentions that no discovery was 21 necessary or appropriate due to the pending motion for summary 22 judgment and that defendant’s discovery requests were improper 23 because they sought information beyond the administrative record. 24 (See Objections at 3.) Plaintiff argues that because of this, 25 the Magistrate Judge did not consider or require defendant to 26 demonstrate relevance, proportionality, or any of the other 27 factors governing the permissible scope of the discovery requests 28 1 under Federal Rule of Civil Procedure 26(b)(1).3 (See id.) 2 Defendant contends that its discovery requests fall well within 3 the proper scope of Federal Rule of Civil Procedure 26(b)(1) 4 because they seek to compel plaintiff to produce the basic and 5 non-privileged information upon which it bases its claims against 6 defendant in this case. (See Reply to Objections at 3.) 7 Plaintiff’s argument is without merit because Judge 8 Delaney specifically stated that “the parties can assume that the 9 court has determined that any objection not discussed in this 10 order has been overruled because it is too general or otherwise 11 meritless.” (See Order at 3.) Thus, the fact that the 12 Magistrate Judge did not specifically detail whether each request 13 satisfied each element of Rule 26(b)(1) does not indicate that 14 she disregarded plaintiff’s arguments as to the relevance of the 15 discovery requests or whether such requests were unduly 16 burdensome under Rule 26(b)(1). 17 Plaintiff additionally objects to the Magistrate 18 Judge’s Order on the basis that defendant has not cited to any 19 piece of discovery relevant to any of the four counts moved for 20 on the Motion for Summary Judgment. (See Objections at 3–4.) 21 Although this issue is relevant to the question of whether the 22 3 Although plaintiff criticizes the Magistrate Judge for 23 allegedly not ruling as to whether each of defendant’s discovery requests were proportional to the needs of this case, in the 24 entire Joint Statement submitted to the Magistrate Judge, which totals 131 pages, plaintiff never even mentions the word 25 proportional in their objections to defendant’s requests. Instead, plaintiff repeats variations of their boilerplate 26 objection that to the extent that information is sought beyond 27 the administrative record it is “overbroad, unduly burdensome and has no relevance to the claims or defenses raised.” (See 28 generally Joint Statement.) 1 court’s ruling on the pending summary judgment motion should be 2 postponed until defendant receives discovery pursuant to Federal 3 Rule of Civil Procedure 56(d), it has no bearing on the issue 4 here.4 The defendant is clearly entitled to take discovery 5 “regarding any nonprivileged matter that is relevant to any 6 party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). 7 Finally, plaintiff objects to the Magistrate Judge’s 8 award of attorney’s fees to defendant. Under Federal Rule of 9 Civil Procedure 37(a)(5)(A), if a motion to compel is granted, 10 the court must require the party whose conduct occasioned the 11 motion “to pay the movant’s reasonable expenses incurred in 12 making the motion, including attorney’s fees.” Fed. R. Civ. P. 13 37(a)(5)(A). The court must not award attorney’s fees if: 14 (i) the movant filed the motion before attempting in good faith to obtain the disclosure or 15 discovery without court action; 16 (ii) the opposing party’s nondisclosure, response, 17 or objection was substantially justified; or

18 (iii) other circumstances make an award of expenses unjust. 19 20 Fed. R. Civ. P. 37(a)(5)(A).

21 4 Moreover, plaintiff’s claim that the discovery sought 22 does not touch on any of the issues which are the subject of the motion for summary judgment lacks support. As just one example, 23 plaintiff claims that the city failed to approve the ColfaxNet eligible facilities request in violation of 47 U.S.C. § 1455 and 24 47 C.F.R. §1.6100. (MSJ at 11.) One of defendant’s defenses is that ColfaxNet’s proposed tower was not an “eligible facilities 25 request.” (Def.’s Mem. in Opp. of Mot. for Summ. J. at 18) (“Opp. to MSJ” (Docket No. 28).) Defendant’s Interrogatory No. 26 11 goes directly to this request and defense and seeks to 27 discover the facts upon which plaintiff bases this assertion. (See Joint Statement at 37.) 28 1 None of these exceptions apply here. First, the 2 defendant attempted to resolve the discovery dispute before 3 bringing the matter to the court. The parties met on June 4, 4 2020 via Zoom to meet and confer and resolve all pending 5 discovery disputes. (See Epstein Decl. at ¶ 16.) Second, 6 plaintiff’s objections and response to defendant’s discovery 7 requests were not substantially justified. As Judge Delaney 8 points out, “[p]laintiff was afforded multiple opportunities to 9 inform defendant of its position, but instead decided to rest on 10 its boiler-plate objections.” (See Order at 9.) That these 11 boilerplate responses and objections by the plaintiff were 12 inadequate and deficient seems evident to even the plaintiff, as 13 they felt the need to include expanded rationales for their 14 objections in their Objections to Judge Delaney’s Order. (See 15 Objections at 9–22.) Third, there are no other circumstances 16 that make an award of expenses unjust. Plaintiff points out that 17 they are a very small company, owned and managed by a husband and 18 wife. (See Objections at 7.) However, had plaintiff produced 19 the discovery that they previously agreed to in a timely and 20 adequate fashion, the expense of these motions could have been 21 avoided. 22 Accordingly, because plaintiff has not demonstrated 23 that the Magistrate Judge’s decision to compel plaintiff to 24 comply with defendant’s discovery requests was “clearly 25 erroneous” or “contrary to law” as required under Local Rule 26 303(g) and Federal Rule of Civil Procedure 72(a), plaintiff’s 27 request for reconsideration of the Magistrate Judge’s order is 28 hereby DENIED. Plaintiff is ORDERED to comply with the □□□ 2 □□ UV EUV RUINS MVVUETIOCTI OE PIR Ve THe AY VI

1 | Magistrate Judge’s Order (Docket No. 27) within 30 days from the 2 | date of this Order. 3 Dated: September 14, 2020 eh tle HK a / 4 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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