BUFORD v. VANG

Full title: TIMOTHY BUFORD, Plaintiff, v. DR. VANG, et al., Defendant

Court: United States District Court, E.D. California

Date published: Aug 15, 2005

No. CV-F-00-6496 REC/SMS P (E.D. Cal. Aug. 15, 2005)

Opinion

No. CV-F-00-6496 REC/SMS P.

August 15, 2005

ORDER DENYING PLAINTIFF'S SUPPLEMENTAL MOTION FOR APPLICATION FOR A RULE 54(b) ORDER (Doc. 169) AND DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND FOR APPLICATION OF 28 U.S.C. 1292(b) RULING AND/OR APPLICATION OF COLLATERAL ORDER (Doc. 170)

ROBERT COYLE, Senior District Judge

On June 8, 2005, plaintiff filed a "Motion for Permission to File a Late Notice of Appeal for Order(s) (Docs. 70, 90, 109, 120, 134 and 143) Due to Change of Address and Ineffective Service of Orders." (Doc. 167).¹

1 Although plaintiff's motion refers to documents no. 70, 90, 120 and 143 as "orders", these documents are defendant's motions. Doc. No. 109 is the Magistrate Judge's findings and recommendations regarding the motions filed as Docs. 70 and 90, which recommended that these defense motions be denied. This court adopted these findings and recommendations by Order filed on February 8, 2005 as Doc. 158. Therefore, there is no basis for plaintiff to appeal to Docs. 70 and 90 or Doc. 109. It is apparent from the docket that plaintiff actually was seeking leave to file a late notice of appeal of this court's Order filed as Doc. 158. Doc. 134 is an order resolving various discovery matters. Plaintiff sought reconsideration of these rulings, which motion for reconsideration was denied by the court on February 8, 2005 as Doc. 159. Therefore, the court concludes that plaintiff's motion intended to seek leave to file a late notice of appeal in connection with Docs. 158 and 159.

By Order filed on June 14, 2005, the United States Magistrate Judge denied this motion. (Doc. 168)

On June 24, 2005, plaintiff filed a "Supplemental Motion . . . for Permission to File a Late Notice of Appeal for Orders (Docs. 70, 90, 109, 120, 134 and 143) and Application for a Rule 54(b) Order." (Doc. 169).

On July 5, 2005, plaintiff timely filed a "Motion for Reconsideration and For Application of 28 U.S.C. 1292(b) Ruling and/or Application of Collateral Order." By this motion, plaintiff seeks reconsideration of the June 14, 2005 Order denying plaintiff's motion for an extension of time to file a late appeal.

The court denies plaintiff's motion for reconsideration. The Order of the Magistrate Judge is neither clearly erroneous or contrary to law.

The court also concludes that the rulings plaintiff seeks to appeal are not subject to the collateral order doctrine. The Order filed on February 8, 2005 as Doc. 158 ordered that the Magistrate Judge issue an order to show cause why plaintiff should not be sanctioned for the bad faith conduct described in the findings and recommendation filed as Doc. 109. The Order filed on February 8, 2005 as Doc. 160 denied plaintiff's request for reconsideration (Doc. 120) of a sanction order. Sanction orders are not immediately appealable under the collateral order doctrine. See Cunningham v. Hamilton County, 527 U.S. 198 (1999); Cato v. Fresno County, 220 F.3d 1073 (9^th Cir. 2000). The court's Order filed on February 8, 2005 as Doc. 159 denied reconsideration of the Magistrate Judge's rulings issued on September 15, 2004 as Doc. 134 denying plaintiff's request for relief from the limitation on interrogatories set forth in Rule 33(a), Federal Rules of Civil Procedure. In view of the strong policy against piecemeal appeals, interlocutory review of discovery orders is highly disfavored. United States v. Nixon, 418 U.S. 683, 690-691 (1974). Discovery orders are not final appealable orders under 28 U.S.C. § 1291, and courts have refused interlocutory review of such orders under the collateral order doctrine. In United States v. Zone, 403 F.3d 1101, 1106-1107 (9^th Cir. 2005), the Ninth Circuit holds that interlocutory appeals are appropriate for those discovery requests that seek information to establish that a statutory or constitutional right not to be tried. Here, plaintiff's discovery requests do not meet this criteria and, therefore, the collateral order doctrine is inapplicable.

The court also denies plaintiff's request to certify these orders for immediate appeal under Rule 54(b), Federal Rules of Civil Procedure and 28 U.S.C. § 1292(b). The court concludes that plaintiff has not made the showing required for certification of these rulings for immediate appeal under either Rule 54(b) or Section 1292(b).

ACCORDINGLY:

1. Plaintiff's "Supplemental Motion . . . for Permission to File a Late Notice of Appeal for Orders (Docs. 70, 90, 109, 120, 134 and 143) and Application for a Rule 54(b) Order" is denied.

2. Plaintiff's "Motion for Reconsideration and For Application of 28 U.S.C. 1292(b) Ruling and/or Application of Collateral Order" is denied.

IT IS SO ORDERED.