Answering Brief - Civil Rights appeal

8/14/2019 Answering Brief - Civil Rights appeal

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Appeal No. 07-17369

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Appeal from the United States District Courtfor the District of Nevada

Hon. Larry R. HicksNo. 3:05-cv-00121-LRH-VPC

_________________________________________________________________

HIAWATHA HOEFT-ROSS; et al.,

Plaintiffs/Appellees

vs.

WERNER HOEFT, Trustee of the Hoeft Revocable Trust; et al.,

Defendants/Appellees

ANSWERING BRIEF

Michael R. Kealy, Esq., Bar No. 971Parsons Behle & Latimer50 West Liberty Street, Suite 750Reno, Nevada 89501Telephone: (775) 323-1601

Facsimile: (775) 348-7250Attorneys for Appellees

Werner Hoeft, Trustee of theHoeft Revocable Trust

Case: 07-17369 05/15/2009 Page: 1 of 41 DktEntry: 6922975


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CORPORATE DISCLOSURE STATEMENT

The Appellees are not associated with any corporate entity that Fed. R. App.

P. 26.1 requires Appellees to disclose.



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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................i

TABLE OF CONTENTS .......................................................................................ii

TABLE OF AUTHORITIES .................................................................................ivSTATEMENT OF JURISDICTION.....................................................................vii

I. STATEMENT OF RELEVANT FACTS ............................................................1

II. SUMMARY OF THE ARGUMENT .................................................................5

III. ARGUMENT ...................................................................................................6

A. The District Court Properly Granted Summary Judgment on Hoeft-Ross

42 U.S.C. 1981 and 1982 Claims Because Hoeft-Ross has Failed to OfferAny Evidence Regarding Whether He was Qualified to Rent the Property, or that

the Property was Available to the Public .............................................................61. Summary Judgment Standard of Review.................................................8

2. The Record Lacks Any Evidence that Hiawatha was Qualified to Rentthe Property .....................................................................................................9

3. The Record Lacks Any Evidence Rebutting the Fact that the Propertywas Never Available to the Public .................................................................10

B. The District Court Properly Sanctioned Hoeft-Ross for Their Failure to

Adhere to the Rules of Civil Procedure and Their Failure to Attend a Scheduling

Conference that Was Necessitated by Their Delay ............................................121. Standard of Review of Discovery Orders ..............................................15

2. The Magistrate Judges Order was Appropriate Under the Inherent Powerof the Court....................................................................................................15

3. The District Courts Sanction Does Not Amount to A DispositiveOrder .............................................................................................................17

C. The District Court Properly Determined that Mr. Hiawatha Did Not

Demonstrate Excusable Neglect for Failing to Appear at the January 18, 2007Case Management Conference ..........................................................................20

1. Standard of Review...............................................................................20

2. The District Court was Apprised of All Relevant Facts When ItSanctioned Hoeft-Ross for Failing to Attend the Scheduling Conference andfor Failing to Conduct an Initial Case Conference..........................................21



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3. Three Out of the Four Appellants Have Not Alleged Any ExcusableNeglect ..........................................................................................................26

4. In the Unlikely Event That This Court Determines that the Application ofthe Briones Test is Appropriate, the Record Demonstrates that Hoeft-Ross

Disregard of the Federal Rules of Civil Procedure was Not Excusable ..........28IV. CONCLUSION ..............................................................................................31

CERTIFICATE OF COMPLIANCE ....................................................................32

STATEMENT OF RELATED CASES ................................................................32



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TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................8

Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997) ........................................................................................ 20, 28, 29, 31

Byrd v. Environmental Protection Agency, 174 F.3d 239 (9th Cir.1999) .....................................................................................................19

Campbell Industrial V. M/V Gemini, 619 F.2d 24 (9th Cir. 1980)...............15

Celotex Corp. v. Catrett, 477 U.S. 317(1986)...............................................8

Chambers v. NASCO, Inc. 501 U.S. 32 (1991) ........................................... 16

Dahl v. City of Huntington Beach, 84 F.3d 363 (1991) ...............................15

Eastman Kodak Co. v. Image Tech. Services, Inc., 504 U.S. 451(1992)......................................................................................................8

Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991)............................................. 21

Freeland v. Amigo, 103 F.3d 1271 (6th Cir. 1997) .....................................18

Graham v. Mukasey, 2009 WL 902302 ...................................................... 19

Grimes v. City and County of San Francisco, 951 F.2d 236 (9th Cir.1991) .....................................................................................................15

H.L. Hayden Co. of N.Y., Inc. v. Siemens Medical System, Inc., 879F.2d 1005 (2d Cir. 1989) .........................................................................8

Hutchinson v. Pfeil, 105 F.3d 562 (10th Cir. 1997).....................................17

Leffler v. Meer, 60 F.3d 369 (7tt Cir. 1995) ................................................15



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Lew v. Kona Hospital, 754 F.2d 1420 (9th Cir. 1985).................................15

Maisonville v. F2 America, Inc., 902 F.2d 746 (9th Cir. 1990) ............. 17, 19

Malone v. United States Postal Services, 833 F.2d 128 (9th Cir. 1987) ........6

Merritt v. International Bro. of Boilermakers, 649 F.2d 1013 (5th Cir.

1981) .....................................................................................................17

Ocelot Oil Corp. v. Sparrow Industrial, 847 F.2d 1458 (10th Cir.1988) ............................................................................................... 17, 18

Palgut v. City of Colorado Springs, 2009 WL 539723, 2............................17

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507U.S. 380, (1993) ....................................................................................28

Selden Apartments v. United States Department Of HUD, 785 F.2d152 (6th Cir. 1986) ........................................................................ 7, 9, 10

Unigard Security Insurance Co. v. Lakewood Engineering &

Manufacturing Corp., 982 F.2d 363 (9th Cir. 1992) ..............................15

U.S. v. Carlson, 900 F.2d 1346 (9th Cir. 1990)...........................................19

Ware v. Rodale Press, Inc., 322 F.3d 218 (3rd Cir. 2003)...........................18

Weeks v. Samsung Heavy Industrial Co., Ltd., 126 F.3d 926 (7th Cir.1997) .....................................................................................................15

Zimmerman v. Shakman, 62 P.3d 976 (Ariz. Ct. App. 2003) ......................18

RULES AND STATUTES

28 U.S.C. 636 ......................................................................... 16, 17, 19, 20

Fed. R. Civ. P. 26 ...........................2, 3, 13, 14, 16, 17, 21, 22, 23, 24, 26, 27

Fed. R. Civ. P. 56 ................................................................................. 7, 8, 9



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Fed. R. Civ. P. 60 ................................................................................. 21, 28

Fed. R. Civ. P. 72 .......................................................................................17

42 U.S.C. 1981 and 1982..................................................5, 6, 7, 9, 10, 12



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STATEMENT OF JURISDICTION

The Appellees do not dispute the Appellants Statement of Jurisdiction.

However, the Appellees note that the District Court ultimately declined to exercise

supplemental jurisdiction under 28 U.S.C. 1367.



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I.

STATEMENT OF RELEVANT FACTS

The Dwelling

Werner and Christel Hoeft are the parents of Monica Hoeft-Ross, in-laws to

Hiawatha Hoeft-Ross, and grandparents to Kirsten Hoeft-Ross and Martin Hoeft-

Ross (collectively Hoeft-Ross). (Supplemental Excerpts of Record SER 22:8-

11.) Werner and Christel Hoeft purchased a dwelling located at 4569 Pennant

Court, Sparks, Nevada, (the property) for the sole purpose of providing and

subsidizing an affordable house for the Hoeft-Ross family. (SER 22:15-16, 35:10-

15; 109:5-7.) Werner and Christel Hoeft bought this dwelling as joint tenants in

August of 2001. (SER 31:4-5.) Werner and Christel Hoeft created the Hoeft

Revocable Trust in July 2002, and at that time transferred the title to the Sparks

rental into said trust.1 (SER 31:4-8.) Hoeft-Ross resided in the property from

September of 2001 until December of 2004. (SER 33:9-15.) After Hoeft-Ross

was evicted for nonpayment of the nominal monthly rent of $500, the property was

sold by the Hoefts without ever being rented to any other person. (SER 31:9-10,

33:13-15, 57.)

1

Werner and Christel Hoeft, individually and as trustees of the Hoeft RevocableTrust are collectively referred to herein as the Hoefts.



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acceptable to Hoeft-Ross, who were not accessible by telephone. (SER 42, 48, 51,

52-53, 56, 61, and 72-73.) The collective trail of correspondence is included in the

Supplemental Excerpts of the Record so that this Court may consider the content,

tone and timing of the communications. (SER 42-73.) In particular, the Hoefts

direct the Courts attention to the September 8, 2006 letter to demonstrate the

difficulties encountered by the Hoefts in scheduling a meet and confer, where

Hoeft-Ross would repeatedly cancel dates, including dates offered by Hoeft-Ross,

and then fail to offer new dates for a conference. (SER 72-73.)

On July 27, 2006, Hoeft-Ross mailed to Hoefts counsel a Plaintiffs

Witness and Document List, which included only two pages of documents

consisting of the two-sided monthly rental agreement at issue, and a one-page letter

dated October 15, 2004. These two documents had previously been attached as

exhibits (T and K respectively) to Plaintiffs Reply to Defendants Motion to

Dismiss First Amended Complaint, filed eight months earlier on November 28,

2005. (SER 116-118.) The witnesses identified included only the Plaintiffs

themselves, and a Ms. Laura Link, who had already filed declarations with the

Court. (SER 108-109.) Thus, the dearth discovery productions by Hoeft-Ross

under Rule 26(a)(1) consisted of (1) a list of the Plaintiffs themselves plus one

witness already identified to the Hoefts, and (2) two pieces of paper already

provided to and possessed by the Hoefts. (E.R. 9-14.)



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Hoeft-Ross proposed a Discovery Plan and Scheduling Order on July 27,

2006, with a discovery cut-off of December 19, 2006. (SER 47.) Having been

unsuccessful in getting Hoeft-Ross to commit or appear for a meet and confer, the

Hoefts mailed a List of Witnesses and Documents to Hoeft-Ross, together with

over 150 pages of Bates-stamped documents, and a revised Discovery Plan and

Scheduling Order on August 8, 2006. (SER 51, 74-76.) The need for special

scheduling to accommodate Hoeft-Ross was included in the Hoefts revised

Discovery Plan and Scheduling Order. (SER 95:2.) In addition, a copy of the

Hoefts List of Witnesses and Documents, without copies of the Hoeft documents

was provided to the District Court. (SER 74-77.) Counsel for Defendants then

immediately spent two full work weeks in trial from August 14, through August

25, 2006, and subsequently filed Defendants Discovery Plan and Scheduling

Order on September 9, 2006, after advising Hoeft-Ross of the intent to do so.

(SER 40:24-27, 61, 93.)

The District Court, through the Magistrate, scheduled and rescheduled a case

management conference to accommodate the needs of Hoeft-Ross. (SER 4-5.) On

January 18, 2007, Monica Hoeft-Ross, Hiawatha Hoeft-Ross, Kirsten Hoeft-Ross,

and Martin Hoeft-Ross all failed to attend the case management conference. (E.R.

28.) Although both the Court and Hoefts counsel waited for a period of time to

allow Hoeft-Ross to show up late, no appearance was made by Hoeft-Ross. (E.R.



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28.) Given Hoeft-Ross failure to substantively comply with Rule 26(a), and their

unexplained absence from the hearing scheduled for their benefit, the Magistrate

ruled that Hoeft-Ross would not be entitled to further discovery. (SER 2.)

II.

SUMMARY OF THE ARGUMENT

In this case, the District Court granted summary judgment in favor of

Werner and Christel Hoeft upon Hiawathas 42 U.S.C. 1981 and 1982 claims

because Hiawatha ha[d] not submitted any evidence indicating that he was

qualified to rent the property, and because there is no evidence that the property

remained available after Defendants allegedly refused to enter into a contract with

Hiawatha. (E.R. 16:24-25, 17:22-23.) It is incumbent upon Hoeft-Ross in this

appeal to identify evidence in the record which can present genuine issues of

material fact on these two factors. However, Hoeft-Ross has failed in this duty

because there is a complete failure of proof with respect to whether Hiawatha

Hoeft-Ross was qualified to rent the property, and to refute the sworn statements of

the Hoefts that the property was never available to the public.

Although Hoeft-Ross makes much of the Magistrates Order precluding any

further discovery in the caseyears after the case was filed, the issue of the

discovery sanction is moot because Hoeft-Ross 42 U.S.C. 1981 and 1982



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claims were proper for summary disposition, and because Hoeft-Ross failed to

establish the requisiteprima facie case under both statutes.

The Magistrates April 10, 2007 Order precluding further discovery was not

a dispositive order. (E.R. 27-29.) Hoeft-Ross was not precluded from presenting

any witness or evidence whatsoever. (E.R. 27-29.) Thus, the District Court

properly declined to apply the dispositive sanction test set forth in Malone v.

United States Postal Services, 833 F.2d 128 (9th Cir. 1987). The Magistrates

ruling precluding further discovery as of April 10, 2007 was appropriate because of

Hoeft-Ross failure to (1) submit to the Court or agree to a discovery plan and

scheduling order, (2) exchange any documents with the Hoefts beyond the two

pages already contained within the pleadings and papers before the Court, and (3)

attend a scheduling conference that was necessitated by Hoeft-Ross delay and

discovery abuses.

III.

ARGUMENT

A. The District Court Properly Granted Summary Judgment on

Hoeft-Ross 42 U.S.C. 1981 and 1982 Claims Because Hoeft-

Ross has Failed to Offer Any Evidence Regarding Whether He

was Qualified to Rent the Property, or that the Property wasAvailable to the Public

Because the District Courts determination that Hoeft-Ross failed to

establish a prima facie case under 42 U.S.C. 1981 and 1982 renders all other



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issues in this appeal moot, the Hoefts will initially address the Hoeft-Ross

arguments regarding the 42 U.S.C. 1981 and 1982 claims. To establish aprima

facie case under 42 U.S.C. 1981 and 1982, a plaintiff must establish that (1) he

is a member of a racial minority; (2) he applied for and was qualified to rent or

purchase certain property or housing; (3) rejection of the application; and (4) that

the rental property remained available thereafter. Selden Apartments v. United

States Dept. of HUD, 785 F.2d 152 (6th Cir. 1986). A prima facie case is not

present because the record is unburdened by any evidence, despite the

requirements of Fed. R. Civ. P. 56(e), that could establish the second and fourth

factors listed above.

The District Court noted the absence of any evidence in the record

establishing that (1) Hiawatha Hoeft-Ross was qualified to rent the property or (2)

the property was ever available to the public, let alone remained available to the

public after the Hoefts allegedly refused to enter into a contract with Hiawatha

Hoeft-Ross. (E.R. 16-18.) In fact, Hiawatha Hoeft-Ross admitted that the property

was purchased for the sole purpose of housing the Hoeft-Ross family.2

(SER

22:15-16.) This admission corroborates the sworn affidavit of Christel Hoeft,

conclusively establishing that the property was never available to the general

public at any time. (SER 112:5-7.)

2Hiawatha Hoeft-Ross admitted that [the] dwelling was specifically purchased

for the Plaintiffs to live in . . . . (SER 22:15-16.)



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1. Summary Judgment Standard of Review

Summary Judgment is appropriate if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact that the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). It is well established that, [o]ne of the principal purposes of

the summary judgment rule is to isolate and dispose of factually unsupported

claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Although the substantive law controls which factual disputes are material, a

complete failure of proof concerning an essential element of the nonmoving partys

case necessarily renders all other facts immaterial. Id. at 323. The existence of a

mere scintilla of evidence supporting the Hoeft-Ross position does not establish a

genuine dispute because the record must contain evidence from which a jury could

reasonably find for Hoeft-Ross. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986). Even when some evidence exists to be construed, only reasonable

inferences can be drawn from the evidence in favor of the non-moving party.

Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14 112 S.Ct.

2072, 119 L.Ed.2d 265 (1992) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens

Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir. 1989)). If the [non-moving partys]

theory is . . . senseless, no reasonable jury could find in its favor, and summary

judgment should be granted. Id. at 468-69.



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2. The Record Lacks Any Evidence that Hiawatha was

Qualified to Rent the Property

The second of four factors required to determine whether a prima facie case

exists under 42 U.S.C. 1981 and 1982 is whether an applicant applied for and

was qualified to rent or purchase certain property or housing. Selden Apartments,

785 F. 2d at 159. With respect to this issue, the District Court determined that

Hiawatha [had] not submitted any evidence indicating that he was qualified to

rent the property. (E.R. 16:24-25.) Additionally, the District Court went on to

state that [i]n fact, [the Hoefts] are correct that the record before the court is silent

as to this issue. (E.R. 16-17.) In an effort to respond to the District Courts

finding of a complete lack of proof, Hiawatha Hoeft-Ross argues that because his

wife Monica was allowed to rent the property, and because she is now claimed to

lack income and to be dependent on Hiawatha, such is the equivalent of competent

evidence that he was qualified to rent the property. (Appellants Opening Brief

AOB 40.) This conclusory contention is not sufficient to establish aprima facie

case.

Simply put, there is no competent evidence in the record establishing that

Monica and Hiawatha are similarly situated financially, or that either of them were

financially qualified to rent the property. Rule 56(e)(2) of the Federal Rules of

Civil Procedure provides, in pertinent part, that an opposing party may not rely

merely on allegations or denials in its own pleading; rather, its response mustby



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affidavits or as otherwise provided by this ruleset out specific facts showing a

genuine issue for trial. As a substitute for setting forth specific facts, Hiawatha

Hoeft-Ross refers to his own STATEMENT OF UNCONTESTED FACTS, but

does not reference any affidavit or declaration to support his position. (AOB 40.)3

Hoeft-Ross failure to come forth with any competent evidence regarding

Hiawathas and/or Monicas respective financial position highlights the fact that

the record is silent with respect to Hiawathas financial qualifications to rent the

property. Thus, the District Court summarily disposed of Hiawatha Hoeft-Ross

claims under 42 U.S.C. 1981 and 1982.

3. The Record Lacks Any Evidence Rebutting the Fact that

the Property was Never Available to the Public

The fourth factor necessary for a prima facie case to exist under 42 U.S.C.

1981 and 1982 is whether the rental property remained available after a

qualified minority applicants application was denied. Selden Apartments, 785

F.2d at 159. With respect to this issue, the District Court determined that there is

no evidence that the property remained available after the [Hoefts] allegedly

refused to enter into a contract with [Mr. Hiawatha]. (E.R. 17-18.) In the face of

the District Courts finding of a complete lack of proof, Hiawatha Hoeft-Ross now

3Hiawatha cites to E.R. 23 in an effort to support his position that Monica was

financially dependent on Hiawatha, which is a mere allegation excerpt fromPlaintiffs Motion in Opposition to Defendants Motion for Summary Judgment.(AOB 40.)



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conjures that the property was available because the Hoefts rented the property

to their daughter shortly after the Hoefts allegedly rejected Mr. Hoeft-Ross

application. (AOB 41.) However, it is not contested in this case, and in fact has

been admitted, that the Hoefts acquired a dwelling solely as a means of assisting

their daughter and her family, and offering them, and only them, a 3-bedroom

home in which to live for the nominal rental of $500 per month. (SER 22:15-16,

31:10-11, 109:5-7; E.R. II 13.) It is undisputed that this property was never rented

or available to the general public or any other person. (SER 22:15-16, 31:10-11,

109:5-7.) Monica Hoeft-Ross is the daughter of the defendants, which obviates the

Hoefts sworn statements as to why the dwelling was made available to, and only

to, Monica Hoeft-Ross and her family. (SER 31:9-11.) The record also establishes

that the property was never available from September 2001 through December

2004; it was admittedly leased by Monica Hoeft-Ross and occupied exclusively by

Monica, Hiawatha, Martin and Kirsten Hoeft-Ross. (SER 31:9-11.) Although Mr.

Hoeft-Ross alleges in the Amended Complaint various discriminatory acts in

September of 2001, in March 2004, and vaguely at times in between, the Hoeft-

Ross family was occupying the dwelling and continued to do so for the entire

period, plus an additional nine months after March of 2004. (SER 31-33.)

Consequently, there is no genuine issue of fact that the property was not

available after the alleged rejection or refusal to contract. Therefore, the fourth



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element needed for aprima facie case under 42 U.S.C. 1981 and 1982 is clearly

missing. Ultimately, after more than three years and the sustained failure of Hoeft-

Ross to pay even the nominal rent, the Hoefts evicted their estranged daughter and

her family. (SER 33:12-15.) The property was then sold by the Hoefts. (SER

31:9-11.)

Hoeft-Ross posits that the District Courts ruling would set a precedent that

a landlord could not be held liable for racial discrimination so long as [a] landlord

rents [a] unit to a non-racial minority shortly after he rejects a racial minority.

(AOB 41.) This general statement does not fit this case because (1) the Hoefts

never made the property available to the general public, and (2) Mr. Hiawatha was

permitted to occupy the residence for the entire time the property was ever rented,

namely, from September 2001 through December 2004. (SER 31:9-11.)

B. The District Court Properly Sanctioned Hoeft-Ross for Their

Failure to Adhere to the Rules of Civil Procedure and Their

Failure to Attend a Scheduling Conference that Was Necessitated

by Their Delay

The decision of the Magistrate regarding discovery approved by the District

Court does not warrant overturning the grant of summary judgment. Magistrate

Judge Valerie P. Cooke properly sanctioned Hoeft-Ross after all four Plaintiffs

failed to attend a case management conference necessitated by Hoeft-Ross delays.

On January 18, 2007, nearly two years after this case was commenced, Magistrate

Judge Valerie P. Cooke conducted a case management conference. (SER 1.) This



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case management conference was originally set for October 20, 2006, but

postponed to January 18, 2007, because on September 25, 2007 Hoeft-Ross sought

an extension of time for the conference. (SER 6-7.) This extension was sought

after Hoeft-Ross failed to properly respond to and/or file a proposed scheduling

order, and failed to participate in the mandatory Fed. R. Civ. P. 26(f) meeting,

despite many sincere attempts by the Defendants to secure a mutually convenient

date and time for said meeting. (SER 42-73.) Even though the District Court

extended the date for the case management conference further than requested, the

entire Hoeft-Ross family simply failed to show up for the case management

conference on January 18, 2007. (SER 4-5.) The Magistrate Judge then entered

her Order determining that the right to further conduct discovery had been

forfeited by the Plaintiffs due to noncompliance, and had been waived by the

Defendants. (SER 1-2.)

Upon review of the Magistrate Judges April 10, 2007 Order, the District

Court determined that the Order was not clearly erroneous or contrary to law.

(E.R. 13:19-20.) In reaching this determination, the District Court found that:

(1) Mr. Hiawathas various filing in this case

demonstrate that he was capable of engaging indiscovery;

(2) To the extent that [Mr.] Hiawatha may have beenadvised by his doctor not to engage in litigation,the court notes that Hiawatha had the option ofvoluntarily dismissing the case;



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(3) The case had been pending for almost three years[at the time of the District Courts decision];

(4) The Magistrate Judge is correct that Hiawathafailed to show excusable neglect for the failure to

participate in discovery and proceed with thisaction; and

(5) Mr. Hiawatha has failed to show that Judge

Cooks order denying [Hoeft-Ross] theopportunity to engage in discovery as a sanctionfor their failure to comply with Local Rule 26-1and Rule 26 of the Federal Rules of CivilProcedure was clearly erroneous or contrary tolaw.

(E.R. 13-14.)

On appeal, Hoeft-Ross argues that the sanction precluding discovery was a

dispositive sanction that was not properly reviewed as such by the District Court,

and that Hoeft-Ross failure to attend the scheduling conference merely amounted

to excusable neglect. These contentions miss the mark because the Magistrates

sanction did not preclude the introduction of any witnesses or evidence. (SER 1-

2.) Nevertheless, Hoeft-Ross urges this Court to inappropriately apply a higher

standard of review that pertains only to dispositive orders. Furthermore, the failure

of all four appellants to comply with Local Rule 26-1 and Rule 26 of the Federal

Rules of Civil Procedure, coupled with their absence at the scheduling conference,

amounts to more than excusable neglect.



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1. Standard of Review of Discovery Orders

The District Courts possess extremely broad discretion with respect to

discovery matters. Leffler v. Meer, 60 F.3d 369, 374 (7th Cir. 1995). A District

Courts Order affirming sanctions imposed by a Magistrate Judge is reviewed for

abuse of discretion. Grimes v. City and County of San Francisco, 951 F.2d 236,

238 (9th Cir. 1991) (citing Lew v. Kona Hospital, 754 F.2d 1420, 1425 (9th Cir.

1985)). Because the district court is in a far better position than we are to pass on

discovery matters, we will reverse the district courts exercise of discretion as to

discovery matters only upon a showing of an abuse of that discretion. Weeks v.

Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997); see also Dahl

v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir. 1996). Additionally, it is

established that [t]he district court shall defer to the magistrates orders unless

they are clearly erroneous or contrary to law. Grimes, 951 F.2d at 240.

2. The Magistrate Judges Order was Appropriate Under the

Inherent Power of the Court

The Ninth Circuit has recognized as part of a district courts inherent

powers the broad discretion to make discovery and evidentiary rulings conducive

to the conduct of a fair and orderly trial. Unigard Security Ins. Co. v. Lakewood

Engineering & Manufacturing Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting

Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)). Moreover,

Courts are invested with inherent powers that are governed not by rule or statute



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but by the control necessarily vested in courts to manage their own affairs so as to

achieve the orderly and expeditious disposition of cases. Id. (quoting Chambers

v. NASCO, Inc., 501 U.S. 32, 43 (1991)).

More specifically, a United States Magistrate has the authority to hear and

determine any pretrial matter but for those excepted under 28 U.S.C 636(b)(1)(A).

The matters determined by the Magistrate Judge in her April 10, 2007 Order were

all non-dispositive matters falling within the proper authority of the Magistrate

Judge under 28 U.S.C. 636(a), and not excepted under 28 U.S.C 636(b).

In addition to the broad authority granted to the Magistrate by 28 U.S.C.

636, the consequent authority of the Magistrate to control discovery and limit same

as a sanction is abundantly clear throughout the many subsections of Rule 26 of the

Federal Rules of Civil Procedure. In particular, Fed. R. Civ. P. 26(d) states that

. . . a party may not seek discovery from any source before the parties have

conferred as required by Rule 26(f). Furthermore, plaintiffs . . . must . . . confer

to consider the nature and basis of their claims and defenses . . . and to develop a

proposed discovery plan. . . . Id. Rule 26(f) expansively dictates the level of

participation and timing of the parties in conducting the initial discovery. Under L

RIB 1-9, Magistrates may conduct pretrial conferences and related pretrial

proceedings. The record is clear that Hoeft-Ross not only disregarded the most

fundamental requirements of the rules governing discovery, but also disregarded



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the Magistrates Order to appear for a case management conference. Accordingly,

the Magistrates determinations and Order are plainly supported by the record, and

authorized by Rule 26(d) of the Federal Rules of Civil Procedure.

3. The District Courts Sanction Does Not Amount to A

Dispositive Order

The Magistrate Judges sanction precluding further discovery was not

dispositive because it did not dispose of any of Hoeft-Ross claims or defenses.

Fed. R. Civ. P. 72(a) defines non-dispositive matters as those pretrial matter [s]

not dispositive of a partys claim or defense. In Maisonville v. F2 America, Inc.,

it was determined that the Ninth Circuit would follow other Circuits that have

noted that discovery sanctions not falling within the motions excepted in [28

U.S.C.] section 636(b)(1) are non-dispositive matters. 902 F.2d 746, 748 (9th Cir.

1990) (citing Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.

1988); Merritt v. International Bro. of Boilermakers, 649 F.2d 1013, 1016-17 (5th

Cir. 1981)). Because the Magistrates sanction precluding further discovery does

not fall within the motions excepted in section 636(b)(1), it is a non-dispositive

discovery sanction.

Generally speaking, discovery matters are non-dispositive, and it is well

settled that [a] magistrate judge has authority to order discovery sanctions for

improper conduct during the discovery process. Palgut v. City of Colorado

Springs, 2009 WL 539723, 2 (D. Colo. 2009) (citing Hutchinson v. Pfeil, 105 F.3d



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562, 565 (10th Cir. 1997) (Discovery is a nondispositive matter, and magistrate

judges have the authority to order discovery sanctions. (citations omitted); Ocelot

Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988) (Discovery is

clearly a pretrial matter, and magistrates thus have general authority to order

discovery sanctions.). Hoeft-Ross argues that a sanction is case-dispositive if it

prevents discovery. (AOB 16.) This assertion is unsupported by any case law or

other legal authority.

Hoeft-Ross offers the cases Zimmerman v. Shakman, 62 P.3d 976, 982

(Ariz. Ct. App. 2003), Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3rd Cir.

2003), and Freeland v. Amigo, 103 F.3d 1271, 1276 (6th Cir. 1997), for the

proposition that a sanction precluding further discovery is dispositive. However,

these cases stand for a much different proposition, namely, that a sanction which

excludes evidence from trial that is necessary to establish a partys claims is a

dispositive sanction. Such is not this case. Hoeft-Ross ignores the material

distinction and asks this Court, without the benefit of any legal precedent, to

casuistically deem a sanction precluding further discovery to be the equivalent of

an orderin liminepreventing the admissionat trialof key witnesses or relevant

evidence. The pertinent case law in this jurisdiction precludes this quantum leap

by clearly establishing that discovery sanctions not falling within the matters



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excepted in 28 U.S.C. 636(b)(1) are non-dispositive. See Maisonville v. F2

America, Inc., 902 F.2d 746, 748 (9th Cir. 1990).

Significantly, Hoeft-Ross never argued in the District Court that his ability

to properly respond to the Hoefts Motion for Summary Judgment was impaired by

the Order precluding further discovery. It is fundamental that [t]he party seeking

discovery bears the burden of identifying the facts to be discovered that would

create genuine issues of material fact and the reasons why the party cannot acquire

those facts without additional discovery. Graham v. Mukasey, 2009 WL 902302,

2 (D.D. Cir. 2009) (citing Byrd v. Environmental Protection Agency, 174 F.3d

239, 248 n. 8 (D.C. Cir. 1999)). Hoeft-Ross ignored this burden in the District

Court and never argued that more discovery was necessary to properly respond to

the Motion for Summary Judgment.

Rather, Hoeft-Ross Rule 56(f) argument is an afterthought, raised for the

first time on this appeal. As a general rule, unless a party is able to show

exceptional circumstanceswhich have not been demonstrated herethis Court

will not consider issues raised for the first time on appeal. U.S. v. Carlson, 900

F.2d 1346, 1349 (9th Cir. 1990). Moreover, this case was nearly two years old at

the time the Magistrate entered the sanction precluding further discovery. (SER 1-

2.) By that time, Hoeft-Ross had formally produced two pieces of paper as their

entire initial document disclosures. (E.R. II 9-14.)



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Hoeft-Ross Opening Brief intimates that if Hoeft-Ross had been permitted

to conduct further discovery, they might have been about to determine (1) if the

Hoefts, or their trust, owned more real-estate that would subject them to the

requirements set forth in the Fair Housing Act, (2) that the Hoefts had attempted to

rent the property to the general public, and (3) what the requirements were to rent

the property. (AOB 17-18.) This argument is also being raised for the first time

on appeal and should be rejected. Hoeft-Ross belated suggestion is nothing more

than mere conjecture regarding what additional discovery might possibly divulge.

It further reveals that Hoeft-Ross lacked even the minimum factual foundation

upon which to assert a claim based upon the Fair Housing Act, and speculated that

something might surface through a fishing expedition.

Accordingly, this Court should determine that the Magistrate Judges

sanction precluding further discovery is not a dispositive sanction because it does

not fall within the motions excepted in 28 U.S.C. 636(b)(1), and because it was

not dispositive of any of Hoeft-Ross claims or defenses.

C. The District Court Properly Determined that Mr. Hiawatha Did

Not Demonstrate Excusable Neglect for Failing to Appear at the

January 18, 2007 Case Management Conference

1. Standard of Review

The District Courts denial of a Rule 60(b) motion is reviewed for abuse of

discretion. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 380 (9th Cir. 1997).



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Moreover, [a]n appeal from a denial of a Rule 60(b) motion brings up only the

denial of the motion for review, not the merits of the underlying judgment. Id.

(quoting Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991)).

2. The District Court was Apprised of All Relevant Facts

When It Sanctioned Hoeft-Ross for Failing to Attend the

Scheduling Conference and for Failing to Conduct an Initial

Case Conference

Fed. R. Civ. P. 60(b)(1) provides, in pertinent part, that [o]n motion and

just terms, the court may relieve a party or its legal representatives from a final

judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or

excusable neglect. Hoeft-Ross argues that the District Court also erred when it

denied Mr. and Mrs. Hoeft-Rosss Rule 60(b)(1) motion and ruled that they had

not shown excusable neglect for missing the January 18, 2007 case management

conference. It is clear from the record that the District Court was fully apprised

ofand consideredall of the facts surrounding Hoeft-Ross discovery abuses.

(E.R. 12-14.) The Court observed Hoeft-Ross filing of extensive motions before

the District Court, while Hoeft-Ross simultaneously claimed impairment from a

condition dating back to 1998 as an excuse for noncompliance with Fed. R. Civ. P.

26. (E.R. 13:20-23; SER 26:17-22.)

Following Hoeft-Ross failure to attend the January 18, 2007 case

management conference, the Magistrate Judge entered an Order on April 10, 2007

which found that:



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[P]laintiffs have failed to show excusable neglect fortheir nearly seven-month failure to participate indiscovery or proceed with this case. Despite claimingvarying medical ailments and automobile accidents,

plaintiffs were able to file a sixteen-page motion forsanctions against defense counsel which included 109

pages of exhibits. [(#52/53/54)] The Court finds that

plaintiffs were able to participate in discovery and chosenot to do so at their own peril.

(E.R. 28.) (Citations omitted.)

In response to this Order, Hoeft-Ross filed objections before the District

Court. Upon review, the District Court recognized in a December 5, 2007 Order

that the Magistrate Judge noted Hoeft-Ross refusal to participate in a Fed. R. Civ.

P. 26(f) meeting from July, 2006, through September, 2006, despite the Hoefts

continued attempts to conduct the meeting. (E.R. 12.) In addition, the December

5, 2007 Order acknowledged that as a result of Hoeft-Ross failure to attend the

January 18, 2007 case conference, which was scheduled at Hoeft-Ross request,

Hoeft-Ross waived any right to request revisions or extensions as to the case

management issues in this matter. (E.R. 12-13.) Finally, the District Court noted

that Hoeft-Ross was precluded from conducting discovery because of their failure

to appear at the hearing and their failures regarding the initial disclosures and

propounding a discovery plan and a scheduling order. (E.R. 13.)

This thorough review of the Magistrates considerations demonstrates that

the District Court properly gave consideration to all of the facts surrounding Hoeft-

Ross discovery abuses. Although Hoeft-Ross attempts to parse and grossly inflate



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the significance of imprecise statements by counsel for Hoeft during the case

management conference, the record clearly establishes that the District Court did

not make erroneous findings with respect to Hoeft-Ross discovery abuses.

Moreover, the record contains ample evidence that the District Court was aware of

the facts, and familiar with Mr. Hoeft-Ross, when it sanctioned Hoeft-Ross.

During the January 18, 2007 case management conference, the Magistrate

recounted on the record Hoeft-Ross numerous discovery abuses. (SER 5-10.)

The Magistrates observations, combined with other relevant facts from the record,

are as follows:

1) The matter was filed on March 2, 2005, and wassoon approaching its two year anniversary; (SER

5:15-18.)

2) The Hoefts were unable to obtain cooperation fromHoeft-Ross in obtaining and filing a discovery plan

with the Court; (SER 6:15-23.)

3) The Hoefts unilaterally filed a proposed DiscoveryPlan and Scheduling Order; (SER 6:19-21, 93-96.)

4) The discovery plan filed by the Hoefts stated that[p]ursuant to FRCP 26(f)(1), the parties havesubmitted their initial disclosures to each other.The parties have corresponded regarding a meetand confer, but have not conducted the meet and

confer; (SER 93:23-27.)

5) The Court signed the proposed Discovery Plan and

Scheduling Orderwhich acknowledged thatinitial disclosures had been madeand filed it onSeptember 11, 2006; (SER 93-96.)



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6) The September 11, 2006 Order set the discoverycut-off date for December 18, 2006; (SER 94:15-16.)

7) The Court ordered a case management hearing on

October 20, 2006, because it had concerns aboutthe status of the case; (SER 6-7.)

8) Hoeft-Ross subsequently contacted the Court

requesting a new date for the case managementhearing because of a doctors appointment; (SER7:3-14.)

9) Upon receipt of a medical excuse from Hoeft-Ross, the Court rescheduled the hearing for

January 18, 2007; (SER 7:15-17.)

10) Hoeft-Ross filed a Motion for an Extension ofTime to Extend the Start of Discovery; (SER7:12-14.)

11) The Motion for an Extension of Time stated thatHoeft-Ross had submitted a list of MandatoryExchanges and a Discovery Scheduling Order onJuly 27, 2006, (SER 89:8-9.)

12) Exhibit 5 of Plaintiffs Motion for Extension ofTime, filed on September 25, 2006, containedHoeft-Ross list of witnesses and documentsexchanged pursuant to Fed. R. Civ. P. 26; (E.R. II9-14; SER 89:19-20.)

13) The Court granted the Motion for Extension ofTime and noted that there was a case managementhearing scheduled for January 18, 2007; (SER

7:15-17.)

14) Apart from the federal question claims, Hoeft-Rosshas filed an amended complaint that contained 30or so of the spectrum of possible claims one canimagine that one might consider filing, and they

are all state-law claims; and (SER 7.)



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15) The Magistrate recognized that it had priorexperience with Mr. Hoeft-Ross litigation inFederal Court. (SER 10:3-4.)

In consideration of all of these facts, and Hoeft-Ross failure to attend the

hearing, the Magistrate determined that Mr. and Ms. Hoeft-Ross had waived any

right to have input in the case management issues of concern to the Court. (SER

10:3-8.) The record is clear Hoeft-Ross not only disregarded the most fundamental

requirements of the rules governing discoveryan initial meet and confer that

triggers the start of discoverybut egregiously disregarded the Magistrates Order

to appear for a case management conference. Additionally, Hoeft-Ross failed to

ever respond to Defendants proposed scheduling order despite being prompted by

the Hoefts, and failed to file their own proposed scheduling order with the Court.

The Hoefts advised the Court twice in their Discovery Plan and Scheduling Order

that special scheduling may be needed, and once that additional time for discovery

may be necessary. (SER 94:16-18, 95:2, 96:1-2.) Accordingly, the Magistrates

determinations and Order are plainly supported by the record.

Hoeft-Ross pontifications that the District Court materially or otherwise

based its sanctions on some misperception formed from statements made during

the case management conference are specious. (AOB 26.) Importantly, the record

is clear that prior to the conference, counsel for the Hoefts filed a Proposed

Discovery Plan and Scheduling Order that informed the Court initial disclosures



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(inclusive of the 2 pieces of paper) had been exchanged, but that the parties had yet

to meet and confer. (SER 93.) Also, more than three months prior to the

conference, Hoeft-Ross supplied the Court with a copy of their initial disclosures

with their Motion for an Extension of Time. (SER 89:18-19.) When the District

Court reviewed the Magistrate Judges April 17, 2007 Order, the District Court had

the entire record before it, including the actual initial document disclosures made

by Hoeft-Ross.

Hoeft-Ross paltry disclosure of merely two documents in this casethat

had already been used as exhibits in prior motion workblatantly violated the

spirit and substance of Fed. R. Civ. P. 26(a)(1)(A), which provides, in part, that all

parties must disclose a copy, or description, of all documents . . . in its possession,

custody, or control and may use to support its claims or defenses. The deficiency

in Hoeft-Ross disclosures and approach to Fed. R. Civ. P. 26(a) renders their

discovery compliance as the substantive equivalent of doing nothing at all. The

Magistrate was wellversed with the record and these Plaintiffs, and suffered no

misunderstanding as to what Hoeft-Ross had done or not done by way of

discovery.

3. Three Out of the Four Appellants Have Not Alleged Any

Excusable Neglect

Hoeft-Ross argues excusable neglect, which was considered and rejected by

the Magistrate and the District Court Judge. However, the excusable neglect



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previously offered to the Magistrate was argued only by one appellant, Mr. Hoeft-

Ross. There is no explanation whatsoever from three of the four appellants as to

why all appellants (1) failed to attend the case management conference, (2) failed

to comply with the meet and confer requirements, and (3) failed to timely submit a

proposed Discovery Plan and Scheduling Order. The record is void of any claims

of physical or mental conditions by Martin Hoeft-Ross, who was a minor when the

litigation commenced but who reached the age of majority in December, 2006.

Martin Hoeft-Ross has not communicated in this case at all since reaching the age

of majority. The record is equally void of any claims of physical or mental

conditions by Kirsten Hoeft-Ross, now also an adult. Finally, Monica Hoeft-Ross

offers no authenticated or competent evidence of any kind to support a theory that

she is currently mentally or physically unable to comply with the discovery rules.

Rather, there is only an unsupported reference that Monica Hoeft-Ross may have

been treated for mental disorders. (AOB 4.)4

Hoeft-Ross complete failure on appeal to offer any reason for Martin,

Kirsten, and Monica Hoeft-Ross neglect in failing to attend the case management

hearing and neglect in failing to abide by Federal Rules 26 and 26-1 precludes a

determination of excusable neglect with respect to these particular appellants.

4Hoeft-Ross citation to E.R. II 36, an unauthenticated report from a doctor Steven

E. Berman, does not make any reference to treatment for Mrs. Hoeft-Rosssalleged mental disorder.



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December 5, 2007 Order demonstrates that the Court carefully reviewed all of the

circumstances surrounding Hoeft-Ross discovery delay. The District Court

properly recognized that Hoeft-Ross medical excuses could not be analyzed in a

bubble, and that Hoeft-Ross contemporaneous filings must be considered in light

of his allegations that he could not participate in litigation. (E.R. 13:0-21.) The

Court also considered Mr. Hoeft-Rosss delay in participating in a Rule 26

conference, which is demonstrated in the parties correspondence.5

(E.R. 12; SER

49, 52, 61, 69, and 72-73.) In addition, the District Court also properly took into

account the fact that even though Mr. Hoeft-Ross doctor may have recommended

that he not participate in litigation, Mr. Hoeft-Ross had the option of voluntarily

dismissing the case. (E.R. 13:23.) Instead, Mr. Hoeft-Ross chose to continue his

attempts to delay the litigation at his own peril.

Finally, when considering the four factors enumerated in the Briones v.

Riviera Hotel & Casino case, it is clear that Hoeft-Ross neglect is not excusable.

First, there was a great danger of prejudice to the Hoefts that is caused by Hoeft-

Ross delay. Protracted delay in conducting discovery prejudices the Hoefts

because every discovery extension forces the Hoefts to incur additional fees and

5The record establishes that counsel for the Hoefts made multiple attempts to

schedule an initial meet and confer but was met with nothing but excuses and delayfrom Hoeft-Ross. (SER 72-73.) Hoeft-Ross would repeatedly cancel agreed upondates for the meet and confer and would fail to offer alternative dates, despiterepeated requests for such by the Hoefts. (SER 72-73.)



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costs, this is especially true where Hoeft-Ross fails to attend a hearing where the

Hoefts are represented by counsel.

The second factor, the length of the delay and its potential impact on judicial

proceedings, weighs heavily against Hoeft-Ross. As noted by the District Court,

[t]his case has been pending for almost three years. Thus, proceedings to reach a

resolution to this case are desirable. (E.R. 13:23-25.) Yet, Hoeft-Ross continues

to offer nothing but unbounded requests to extend the time for discovery. This

continued delay greatly impacts this case because the delay is indefinite, and

threatens to prevent the Hoefts, who are elderly, from ever reaching a final

resolution to this dispute.

The third factor, the reason for the delay, also suggests that Hoeft-Ross

neglect should not be excused. Only one of the four appellants has given any

reason for their failure to attend the scheduling conference. Thus, there is no

reason for Monica, Kirsten, and Martin Hoeft-Ross failure to attend the

scheduling conference. In addition, Hiawatha Hoeft-Ross reason for delay is

thoroughly undermined by his actions in this case. On the one hand he alleges that

he is unable to participate in the litigation, but he simultaneously files several

lengthy papers and declarations arguing his position in the lawsuit. This double

standard was recognized by the District Court and brings into question Mr. Hoeft-

Ross allegations of illness. (E.R. 13:20-21.)



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The fourth factor, whether Hoeft-Ross acted in good faith, also weighs in

favor of a determination that Hoeft-Ross neglect was inexcusable. First, Hoeft-

Ross sought extensions to respond to the Motion to Dismiss because of illness.

Next, Hoeft-Ross failed to ever participate in a meet and confer because of further

allegations of illness. Finally, Hoeft-Ross extended the date of the scheduling

conference because of a doctors appointmentand then failed to attend the

conference. These repeated and subjective delays evidence that Hoeft-Ross is not

proceeding in good faith.

Because all of the Briones factors weigh against a determination of

excusable neglect, and because the District Court properly considered all of the

facts when it found that Hoeft-Ross had failed to demonstrate excusable neglect,

the District Courts findings should be affirmed.

IV.

CONCLUSION

For the reasons stated above, the Hoefts respectfully request that this Court

affirm the Order of the District Court granting summary judgment in favor of the

Hoefts and against Hoeft-Ross.

RESPECTFULLY SUBMITTED this 15th day of May, 2009.

PARSONS BEHLE & LATIMER

/s/ Michael R. Kealy

Michael R. Kealy, Esq.



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4824-6487-4755.1 32

CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULE 32-1

Case No. 07-17369

I certify that that the brief is proportionately spaced, has a typeface of 14

points or more and contains 7,317 words.

Dated: May 15, 2009.

/s/ Michael R. Kealy _____________Michael R. Kealy

STATEMENT OF RELATED CASES

There are no known related cases pending in this Court.



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