{Converted to html using OCR}
Case 3:09-cv-00421-LRH-VPC Document 57 Filed 11/16/10 Page 1 of 6
DANIEL G. BOGDEN
United States Attorney
HOLLY A. VANCE
Assistant United States Attorney
100 West Liberty Street, Suite 600
Reno, NV 89501
Tel: (775) 784-5438
Fax: (775) 784-5181
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:09-CV-00421-LRH-VPC
JED MARGOLIN,
Plaintiff,
V.
NATIONAL AERONAUTICS
AND SPACE ADMINISTRATION,
Defendant.
REPLY TO OPPOSITION TO MOTION TO
STRIKE AND OPPOSITION TO MOTION
REQUESTING LEAVE TO FILE DECLARATION
COMES NOW Defendant National Aeronautics and Space Administration ("NASA") and submits this Reply to Plaintiff's Opposition to Motion to Strike (#54) and this Opposition to Plaintiffs Motion Requesting Leave to File Declaration. (#54). Plaintiff appears to concede that his exhibits are inadmissible without a supporting declaration to authenticate them. This Court should strike the exhibits on that basis alone. Plaintiff also failed to lay a proper foundation for the public records exception to the hearsay rule and thus the documents should be stricken as inadmissible hearsay.
For three reasons, Plaintiff s request for leave to file a declaration should also be denied. First, briefing in this matter has been completed, thereby rendering the submission of the declaration
Case 3:09-cv-00421-LRH-VPC Document 57 Filed 11/16/10 Page 2 of 6
untimely. Second, Plaintiff offers no explanation for his failure to submit a timely declaration and thus he has not established excusable neglect. Third, accepting the declaration for filing would prejudice Defendant, who would then be required to submit additional briefing to address the declaration. Defendant should not be put to this task where the case has already been fully briefed. Accordingly, this Court should deny Plaintiffs request for leave to file the declaration.
ARGUMENT
A. Plaintiff offers no authority to refute Defendant's authorities that the exhibits are inadmissible.
Defendant moved to strike the exhibits attached to Plaintiff's Reply to NASA's Opposition to Margolin's Motion for Summary Judgment (#49) and the exhibits attached to Plaintiff s Opposition to NASA's Cross Motion for Summary Judgment (950). Plaintiff did not include a declaration in support of the exhibits attached to either brief. The exhibits are thus inadmissible because they are not properly authenticated, their contents are not subscribed as true under penalty of perjury and they constitute hearsay. See Robinson v. Penner, 2008 WL 544912 (E.D. Cal,} ("Motions for summary judgment may be supported by affidavits or declarations sworn to be true under penalty of perjury."); Countryside Oil Co. v. Travelers Ins. Co., 928 F. Supp. 474, 482 (D. N.J. 1995) (unauthenticated documents may not be used to support or defeat a motion for summary judgment); Kephart v. Data Systems Intern, Inc. 243 F. Supp. 2d 1205, 1209 (D. Kan. 2003) (hearsay that is not admissible at trial may not be used in connection with a motion for summary judgment).
Plaintiff does not offer any argument or authority to refute Defendant's arguments and legal authorities concerning the need for a declaration and authentication. Under the circumstances, Plaintiff has conceded that those arguments and authorities have merit. See Harrison v. District of Columbia, 2006 WL 949856 (D.D.C.) ("[I]f the opposing party files a responsive memorandum, but fails to address certain arguments made by the moving party, the court may treat those arguments as conceded[.]"); Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the
2
Case 3:09-cv-00421-LRH-VPC Document 57 Filed 11/16/10 Page 3 of 6
party opposing summary judgment fails to address that argument in any way). Accordingly, this Court should grant Defendant's motion and strike the exhibits.[1]
B. The pubic records exception to the hearsay rule — Evidence Rule 803(8) — does not apply.
Plaintiff claims that his exhibits are admissible under the public records exception to the hearsay rule — Evidence Rule 803(8). But Plaintiff simply cites the rule and offers no explanation or analysis as to how or why the rule applies. Plaintiff's failure to brief the issue is a sufficient reason for this Court to reject it. See James River Ins. Co. v. Hebert Schenk, 523 F.3d 915, 920 (9th Cir. 2008) (refusing to consider issue that was "inadequately presented"); Hashim-Tiggs v. Schneiter, 2207 WL 185095 (W.D. Wis. 2007) (court declined to address issues on the ground that they were "inadequately briefed"). In any event, the public records exception does not apply.
The public records exception is triggered when a party establishes — through a statement on the face of the document at issue or through extrinsic evidence — that the document sets forth: (A) "the activities of the office or agency," (B) "matters observed pursuant to duty imposed by law," or (C) "factual findings resulting from an investigation made pursuant to authority granted by law." Demirchyan v. Gonzales, 2010 WL 3521784 at 10 (E. D. Cal.); Fed. R. Evid. 803(8). When he filed his opposition and reply briefs, Plaintiff offered no extrinsic evidence to support any of those three factors. Nor did he point to any statement on the face of the exhibits that establishes at least one of those factors. Accordingly, the rule does not apply and this Court should strike the exhibits.
C. This Court should deny Plaintiffs request for leave to file his declaration.
Plaintiff has requested leave from this Court to file his declaration to include with his reply (#49) and opposition briefs. (#50). This Court should deny the request, for the reasons explained below.
[1] Plaintiff also asserts that he received the documents in question from the following sources: NASA, other government agencies and the web sites for NASA and other government agencies. But Plaintiff cites no authority that obtaining documents from those sources obviates the need to address the evidentiary challenges expressed by Defendant.
3
Case 3:09-cv-00421-LRH-VPC Document 57 Filed 11/16/10 Page 4 of 6
1. This case has already been fully briefed.
Briefing in this case was completed on November 1, 2014, when Defendant filed its reply brief. (#52). Both parties filed their briefs in accordance with the briefing schedule agreed upon by the parties and approved by this Court. (#41, #48). Allowing the declaration to be submitted at this late date would thus violate the deadlines established in that briefing schedule. Because the deadline for briefing and submitting evidence has passed, this Court should deny Plaintiff s request for leave to file his declaration.
2. Plaintiff has not established good cause for the untimely filing.
This Court may extend the time for filing for "good cause" if a party "failed to act because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). In assessing what constitutes excusable neglect, courts examine the good faith of the moving party, the extent of the delay involved and the danger of unfair prejudice to the non-moving party. Pioneer Investment Services v. Brunswick Associates, 113 S.Ct. 1489, 1497 (1993); Mendez v. Knowles, 535 F.3d 973, 980 (9" Cir. 2008).
Plaintiff offers no explanation why he did not submit his declaration with his briefing, thereby precluding this Court from determining whether excusable neglect warrants allowing the untimely filing. See See General Atomics v. U.S. Nuclear Regulatory Commission, 1995 WL 230511 (S.D. Cal.) ("General Atomics does not even attach an affidavit explaining why this declaration is almost one week late."); Cooley v. Great Southern Wood Preserving, 2005 WL 1163608 at 9 (11" Cir. 2005) ("plaintiffs offered no explanation for why they did not timely file e their own declarations"). Nor has Plaintiff addressed or discussed the applicable authorities, noted above, related to untimely filings and excusable neglect. Plaintiffs failure to brief the pertinent issues is a sufficient basis for rejecting Plaintiff's argument. See James River Ins. Co. v. Hebert Schenk, 523 F.3d 915, 920 (9th Cir. 2008) (refusing to consider issue that was "inadequately presented" and concluding issue to be waived); Hashim-Tiggs v. Schneiter, 2207 WL 185095 (W.D. Wis. 2007) (court declined to address issues on the ground that they were "inadequately briefed").
Moreover, it appears likely that Plaintiff failed to submit a timely declaration because he is unfamiliar with the Rules of Evidence. But ignorance of the rules — whether procedural or evidentiary — is insufficient to establish excusable neglect. See Fahmy v. Hogge, 2009 WL 33418
4
Case 3:09-cv-00421-LRH-VPC Document 57 Filed 11/16/10 Page 5 of 6
at 2 (C.D. Cal.) ("[T]he sole reason for Plaintiff's failure to submit admissible evidence in opposing Defendant's motion to dismiss was her own negligence. The Ninth Circuit has repeatedly held that failure to read and follow an applicable rule, or ignorance of the law, does not constitute excusable neglect."). Accordingly, this Court should deny Plaintiffs' request for leave to submit his declaration.
3. Defendant would be prejudiced by the untimely filing.
Allowing the submission of the declaration when briefing is now complete would prejudice Defendant. Defendant would be required to submit additional briefing to address the declaration. This would unnecessarily consume Defendant's time and resources. Defendant has already spent considerable time responding to Plaintiffs opposition brief, which exceeded LR 7-4's 30-page limit by 46 pages. (#56). Defendant should not be put to the task of again spending extra time responding to Plaintiff's declaration where Plaintiff repeatedly neglects to follow the Rules of Evidence and Procedure. Accordingly, the request for leave to file the declaration should be denied See Lindner v. Meadow Gold Dairies, 515 F. Supp. 2d 1166, 1172 (D.C. Hawaii 2007) ("Lindner fails to set forth the reasons for his original oversight. Seeing no good cause for the delay and in light of the potential prejudice to SFG, the court denies Linders' Motion for Leave to file Supplemental Declarations."); Pincay v. Andrews, 389 F.3d 853, 858 (9" Cir. 2004) ("ignorance of fact may excuse; ignorance of law does not excuse").
CONCLUSION
For the reasons explained above, this Court should enter an order striking the exhibits attached to Plaintiffs reply (#49) and opposition (#50) briefs. This Court also should deny Plaintiffs Motion Requesting Leave to File Declaration. (#54).
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
/s/ Holly A. Vance
HOLLY A. VANCE
Assistant United States Attorney
5
Case 3:09-cv-00421-LRH-VPC Document 57 Filed 11/16/10 Page 6 of 6
CERTIFICATE OF SERVICE
Case No. 3:09-CV-0042 I -LRH-VPC
JED MARGOLIN,
Plaintiff
v.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
Defendant
The undersigned hereby certifies that service of the foregoing REPLY TO OPPOSITION TO MOTION TO STRIKE AND OPPOSITION TO MOTION REQUESTING LEAVE TO FILE DECLARATION has been made by electronic notification through the Court's electronic filing system or, as appropriate, by sending a copy by first-class mail to the following addressee(s) on November 16, 2010:
ADDRESSEE:
JED MARGOLIN
1981 Empire Road Reno, NV 89521-7430
/s/ Holly A. Vance
Holly A. Vance