UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 25, 2009
HALEMA BUZAYAN, AN INDIVIDUAL; DR. JAMAL BUZAYAN, AN INDIVIDUAL; NAJAT ABDALLA DARRAT, AN INDIVIDUAL; MOHAMED BUZAYAN, BY AND THROUGH DR. JAMAL BUZAYAN, AS GUARDIAN AD LITEM FOR A MINOR; YOUSEF BUZAYAN,BY AND THROUGH DR. JAMAL BUZAYAN, AS GUARDIAN AD LITEM FOR A MINOR; ALI BUZAYAN, BY AND THROUGH DR. JAMAL BUZAYAN, AS GUARDIAN AD LITEM FOR A MINOR, PLAINTIFFS,
THE CITY OF DAVIS; JAMES HYDE, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF POLICE OF THE CITY OF DAVIS POLICE DEPARTMENT; STEVEN PIERCE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY WITH THE CITY OF DAVIS POLICE DEPARTMENT; PHENG LY, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF THE CITY OF DAVIS POLICE DEPARTMENT; BEN HARTZ, INDIVIDUALLY AND AS OFFICER OF THE CITY OF DAVIS POLICE DEPARTMENT; DAVID HENDERSON, INDIVIDUALLY AND IN HIS CAPACITY AS DISTRICT ATTORNEY FOR THE YOLO COUNTY OFFICE OF THE DISTRICT ATTORNEY;; PATRICIA FONG, INDIVIDUALLY AND IN HER CAPACITY AS DEPUTY DISTRICT ATTORNEY FOR THE YOLO COUNTY OFFICE OF THE DISTRICT ATTORNEY AND MEMBER OF THE DAVIS POLICE DEPARTMENT ADVISORY BOARD; DOUGLAS THORN, INDIVIDUALLY AND IN HIS CAPACITY AS COUNSEL FOR YOLO COUNTY AND THE CITY OF DAVIS, DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
MEMORANDUM AND ORDER
Presently before the Court is a Motion to Dismiss, brought by Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1
Plaintiffs in this case, Halema Buzayan and the Buzayan family ("Plaintiffs") allege sixteen causes of action against the Davis Police Department and various individual police officers; the Yolo County Office of the District Attorney and individuals from the District Attorney's Office; and the City of Davis (collectively referred to as "Defendants" unless otherwise noted).
Defendants have submitted the current Second Motion to Dismiss in an unusual manner. They claim that in this Court's September 29, 2008 Memorandum and Order ("September 29 Order"), several arguments raised in a prior motion to dismiss were not adequately addressed and/or resolved. In response, Plaintiffs filed an Opposition Brief to Defendants' Second Motion to Dismiss and a separate Motion to Strike. Although the Court concludes that the majority of the Second Motion to Dismiss is duplicative and unnecessary, and while Plaintiffs have strong arguments that the Motion to Dismiss is untimely in the first place, the Court will nonetheless exercise its discretion to hear Defendants' pleading challenge one final time because resolution of Defendants most recent contentions may help clarify the remaining issues in the present action. As set forth below, the Second Motion to Dismiss is granted in part and denied in part.*fn2
A. Motion to Strike
The Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "(T)he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)(rev'd on other grounds Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed. 2d 455 (1994))(internal citations and quotations omitted). Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id.
B. Motion to Dismiss
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests."
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 2007 U.S. LEXIS 5901, 20-22 (U.S. 2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
A. Plaintiffs' Motion to Strike
Plaintiffs bring a Motion to Strike on the basis that Defendants' Second Motion to Dismiss is untimely. (Pls.' Mot. to Strik Defs.' Mot. to Dismiss 1, Dec. 10, 2008. [hereinafter Motion to Strike].) The September 29 Order granted Plaintiffs*fn3 leave to amend within twenty days. (September 29 Order 25.) That time period expired on October 20, 2008.
Although Defendants argue the time period expired on October 23, Defendants misconstrue Rule 6(d), which provides a three day extension for a time to serve an amended pleading where "a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C),(D), (E), or (F) ...." (emphasis added). Here, Plaintiffs did not effect service under Rule 5 because they chose not to amend their complaint. Thus, the time for Plaintiffs to serve an amended complaint expired on October 20, 2008.
Because Defendants filed the Second Motion to Dismiss on November 7, 2008, which is more than ten days after the date on which Plaintiffs could have filed an amended complaint pursuant to the September 29 Order, Defendants cannot establish that the Second Motion complied with the ten-day requirements under Rules 12(a)(4) or 15(a)(3).
(Mem. of P. & A. in Supp. of Mot. to Partially Dismiss Second Am. Compl. 12, Nov. 7, 2008 [hereinafter Second Motion].)*fn4
Defendants' failure to comply with the above-cited Rules is nonetheless understandable, since neither are clearly on point.
Both Rule 12(a)(4)*fn5 and 15(a)(3)*fn6 contemplate an amended pleading, whereas in this case Plaintiffs did not file an amended complaint. Moreover, Rule 12(a)(1)(i) requires a defendant to serve "an answer within 20 days after being served with the summons and complaint ...."
This Rule is not on point because Plaintiffs served the Second Amended Complaint on January 3, 2008, and the law and motion stage of the proceedings had been in effect for almost a year by the time the Plaintiffs could have amended their complaint again.
Given this difficulty in determining the applicable Rule, the Court will evaluate the timeliness of Defendants' Second Motion under Rule 12(b), which merely states that "[a] motion asserting any [Rule 12(b)] defenses must be made before pleading if a responsive pleading is allowed." In Bechtel v. Liberty National Bank, the Ninth Circuit held that a Rule 12 motion was timely because an extension of time had been allowed for filing a responsive pleading, and the motion was filed prior to that pleading. 534 F.2d 1335, 1341 (9th Cir. 1976) ("... if an extension of time has been allowed for filing a responsive pleading, logic and reason would appear to dictate that the extension should apply to the motion as well."). Plaintiffs argue that the permissive interpretation of Rule 12(b) applies only where an extension has been granted. (Pls.' Opp'n to Defs.' Mot. to Partially Dismiss Second Am. Compl. 8, Dec. 2, 2008 [hereinafter Opposition to Second Motion].) See also Aetna Life Ins. Co. v. Alla Medical Serv., Inc., 855 F.2d 1470, 1474 (9th Cir. 1988)(finding a Rule 12(b)(6) motion timely because the defendants filed a motion prior to expiration of the time for defendants to respond to the complaint, as stipulated to by both parties).
The Court finds the present case distinguishable from Aetna and Bechtel because Defendants never requested an extension to file a Rule 12 motion or a responsive pleading. In addition, the reasoning in Bechtel is not necessarily the only interpretation of Rule 12(b)'s permissive language. In Smith v. Wrigley, a recent Eastern District opinion, the court dismissed a petition for writ of habeas corpus as moot. 2008 WL 2225627, at *1 (E.D. Cal. 2008). Thereafter, the petitioner filed a motion for reconsideration on the basis that the court did not address two of his claims prior to dismissing the action. Id. On August 2, 2007, the court granted the motion for reconsideration and ordered the defendant respond within thirty days. Id. The defendant did not provide a response by that time and, in fact, waited until November 19, 2007 to file a motion to dismiss. The court relied on Aetna and Bechtel in noting that the defendant's filed their motion to dismiss "before any answer or other responsive pleading was filed." The court, noting that no default had been entered against the defendant, stated that it could not "find an adequate basis to strike [the defendant's] motion to dismiss." Id. Accordingly, the court permitted the defendant's motion. See also Ass'n. of Irritated Residents v. Fred Shakel Dairy, 2005 WL 3299508, at *3 (E.D. Cal. 2005) ("the Ninth Circuit 'allows a motion under Rule 12(b) any time before the responsive pleading is filed,' even if filed outside the time limits of Rule 12(a)(1)." (citing to Aetna, 855 F. 2d at 1474 and Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1340-41 (9th Cir. 1976)).)
The decision in Smith is compelling. As in Smith, Defendants have yet to file a responsive pleading in this litigation, and no default has been entered against Defendants.*fn7
Smith, 2008 WL 2225627 at *1. Moreover, the Court cannot find any compelling reason to prevent the current motion from proceeding. As discussed below, Defendants' arguments in their Second Motion to Dismiss are largely rejected, except for those areas where clarification about Plaintiffs' theories for liability is arguably needed. Lastly, a motion to strike is appropriate to "... avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). In this situation, granting Plaintiffs' Motion to Strike would serve the opposite purpose. Accordingly, the Motion to Strike is denied.
B. Defendants Second Motion to Dismiss
Initially, Plaintiffs oppose the Second Motion to Dismiss by arguing that the motion is improper under Rule 12(g)(2), which provides that a party must not make successive motions raising a defense or objection that was available and omitted from an earlier motion. Given Defendants' contention that the current motion does not actually raise new defenses, the Court will exercise its discretion to review the present motion under Rule 12(b)(6). Aetna, 855 F.2d at 1475 n.2 ("courts have discretion to hear a second motion under Rule 12(b)(6) if the motion is not interposed for delay and the final disposition of the case will thereby be expedited ...").
1. Plaintiffs Do Not State a Claim for Civil Liability for Miranda Violations Because No Such Claim Is Alleged
Defendants' first argument is that Plaintiffs cannot establish civil liability for alleged Miranda violations. (Mem. of P. & A. in Supp. of Mot. to Partially Dismiss Second Am. Compl. 4, Nov. 7, 2008 [hereinafter Second Motion].) Accordingly, Defendants argue that the Second and Fourth Causes of Action should be dismissed to the extent they rely on alleged Miranda violations. (Id. at 5.)
Defendants misinterpret the Second and Fourth Causes of Action. Liability under those Causes of Action is premised on allegations of an unlawful arrest motivated by race, ethnicity, color, or religious belief, which Plaintiffs properly allege as a violation of the Fourteenth Amendment. (Second Am. and Supp. Compl. for Damages ¶¶ 126-32, 137-39, Jan. 3, 2008 [hereinafter Second Amended Complaint].)
Defendants similarly misinterpret the line of cases under Chavez v. Martinez, a plurality opinion which holds that civil liability is not available under 42 U.S.C. § 1983 unless evidence obtained in violation of Miranda is introduced against the criminal defendant, later a civil plaintiff, in a criminal proceeding. Chavez, 538 U.S. 760, 767 (2003). Those cases seek to protect the right against self-incrimination under the Fifth Amendment. Id.; see also Aguilera v. Baca, 510 F.3d 1161, 1173 (9th Cir. 2007) (Fifth Amendment claim failed because plaintiffs were never charged with a crime and no incriminating use of the statements had been used). No analogous issue is before the Court here because Defendants' Miranda argument is irrelevant to the Second and Fourth Causes of Action, which allege violations of racial discrimination and denial of equal protection of the law in contravention of the Fourteenth Amendment. Therefore, the Motion to Dismiss on this basis is denied.
2. Plaintiffs Cannot Establish Liability for False Light Invasion of Privacy
Defendants argue that the September 29 Order does not address Defendants' argument that the Fourteenth Cause of Action fails to the extent that it relies on a false light theory for invasion of privacy. (Second Motion 5-7.) The Court recognizes that the September 29 Order may contain some ambiguity about the resolution of this argument and, therefore, will take this opportunity to clarify.
The September 29 Order states that "[t]he Fourteenth and Fifteenth Causes of Action are factually premised on Defendants' alleged disclosure and broadcast of private information about Plaintiffs." (September 29 Order 16). California law recognizes four separate and distinct theories for a cause of action for invasion of privacy: "(1) intrusion, (2) public disclosure of private facts, (3) false light in the public eye, and (4) appropriation." Kapellas v. Kofman, 1 Cal. 3d 20, 35 n.16 (1969) (citing to Prosser, Law of Torts (3d ed. 1964) 829-851).)
The September 29 Order limits the theory of liability in the Fourteenth Cause of Action to Defendants' alleged public disclosure of private facts. This result is appropriate given the fact that the prior dismissal of Plaintiffs' defamation claim encompassed the alleged facts supporting a claim for false light invasion of privacy.
Id. (requiring plaintiff's false light invasion of privacy action to meet the same requirements as a libel claim, including actual malice); see also Fellows v. National Enquirer, 42 Cal. 3d 234, 251 (1986) (holding that false light invasion of privacy claims must meet the same pleading and proof of special damages if the claim is based on the same facts supporting a defamation claim). Because the Court previously dismissed the defamation claim, and the facts supporting that claim were resurrected to support the false light invasion of privacy claim, any false light claim necessarily fails.
Therefore, the Court grants the Second Motion to Dismiss the Fourteenth Cause of Action to the extent that the theory of liability is based on Defendants placing Plaintiffs in a false light. Pursuant to Rule 12(f)(1), and to avoid further confusion about the theory underlying Plaintiffs' Fourteenth Cause of Action, the Court hereby orders the second sentence of paragraph 190, and the first sentence in paragraph 192, in Plaintiffs' Second Amended Complaint stricken. However, the Fourteenth Cause of Action remains viable to the extent Plaintiffs rely on alleged disclosure and broadcast of private information.
3. Plaintiffs State a Claim for Liability Under California Civil Code § 1798.53
The September 29 Order rejected Defendants' argument that California Civil Code § 1798.53 applied because several factual issues were involved in determining whether a violation of this section occurred, including (1) whether there was a "serious intrusion" of Plaintiffs' privacy, (2) whether Defendants were acting within their official capacity, and (3) whether the alleged disclosures had a reasonable relationship to a public interest. (September 29 Order 17.) Defendants' Second Motion points out that the Court did not address whether § 1798.53 applies to the records at issue in this case. (Second Motion 7-8.) Plaintiffs allege a violation of this statute occurred when Defendants allegedly released contents of tape recordings which were taken at the Buzayan home by Officer Ly of the Davis Police Department, then provided to the Davis Enterprise, and ultimately published in an article on June 2, 2006. (Second Amended Complaint ¶ 112.)
Section 1798.3 applies to "any person, other than an employee of the state or of a local government agency acting solely in his or her official capacity, who intentionally discloses information, not otherwise made public, which they know or should reasonably know was obtained from personal information maintained by a state agency ...." Cal. Civ. Code § 1798.53 (emphasis added). Subject to enumerated limitations, the term "agency" is defined as "every state office, officer, department, division, bureau, board, commission, or other state agency." Id. § 1798.3(b) (emphasis added).
Defendants argue that the records at issue were not "maintained by a stage agency," thus excepting the records from the protections afforded by § 1798.53. Plaintiffs' Second Amended Complaint, however, alleges that Defendants, including the Yolo County District Attorney's office, violated § 1798.3 in publishing records protected under § 1798.53. (Second Amended Complaint ¶¶ 195-96.) In their Opposition Brief, Plaintiffs argue that the records were maintained by the Yolo County District Attorney's Office. (Opposition to Second Motion 8.) Additionally, Plaintiffs point out that California district attorneys can be treated as state actors for certain purposes. (Id. (citing to Weiner v. San Diego County, 210 F.3d 1025, 1031-32 (9th Cir. 2000)).)
Based on the arguments presented in Plaintiffs' Opposition Brief, it will be incumbent on Plaintiffs to demonstrate that Defendants knowingly obtained and disclosed records that were maintained by the Yolo County District Attorney's Office while said office was acting as a state agency, and that Defendants' conduct did not fall within the scope of their official capacity. The September 29 Order made clear that such a determination could not be made at this stage in the litigation. Accordingly, the Motion to Dismiss on this ground is denied.
4. The Invasive Publications Alleged by Plaintiffs are Actionable
Defendants argue that the Fourteenth and Fifteenth Causes of Action should be partially dismissed because the Second Amended Complaint does not make allegations against any Defendants except Deputy District Attorney Patty Fong. In support of this argument, Defendants cite to a single paragraph in the entire complaint, while neglecting allegations in the complaint that support the claim. (Second Motion 8 (citing to Second Amended Complaint ¶ 112).) Plaintiffs, however, do make specific allegations against the Yolo County District Attorney's Office and the Davis Police Department. For example, just a couple of paragraphs in front of Defendants' citation, the Second Amended Complaint alleges that "the District Attorney and Officer Ly joined in the Davis Police Department's efforts to retaliate against the Buzayan family." (Second Amended Complaint ¶ 110.) Additionally, in explaining the alleged retaliatory efforts, Plaintiffs allege that "the Yolo County District Attorney's Office falsely purported to be authorized to release the tapes." (Id. ¶ 111.) Moreover, the captions for the Fourteenth and Fifteenth Causes of Action clearly state, in bold, that the allegations apply "Against All Defendants." (Id. ¶¶ 188-96.)
Defendants further argue that California Government Code § 820.8 defeats any potential claim for vicarious liability for acts of fellow public employees. (Second Motion 8.)
Even aside from the fact that this contention was not raised in Defendants' First Motion, Defendants fail to recognize that the Court specifically rejected the claims to immunity in the September 29 Order because the Court cannot determine whether Defendants' conduct fell within the scope of their official capacity. (September 29 Order 17.) See also O'Brien v. Olson, 42 Cal. App. 2d 449, 463 (3d Dist. 1944) (explaining that immunity for public employee supervisors does not apply if the superior countenanced or approved, or acquiesced in the tortious conduct).
The Court finds that Plaintiffs did plead invasive publications by all Defendants. Additionally, it would be improper to make a ruling on the applicability of Government Code § 820.8 at this time in the litigation. Therefore, the Motion to Dismiss on these grounds is denied.
5. Noerr-Pennington Doctrine
Defendants Cannot Establish Immunity Under the
As discussed in the September 29 Order, Defendants' claims to immunity cannot be resolved at this stage of the litigation. Defendants characterize Noerr-Pennington as immunizing any "settlement proposals, subpoenas, discovery and other communications between parties connected to the actual judicial proceeding," including "pre-suit communications such as threats of prosecution and settlement demands." (Second Motion 10 (citing Sosa v. DirctTV, 437 F.3d 923, 934-36 (9th Cir. 2006).)
Defendants fail to recognize that the purpose of Noerr-Pennington immunity is to prevent abridgement of First Amendment rights resulting from liability under a federal statute. Sosa, 437 F.3d 923, 929 (9th Cir. 2006)(explaining that the Noerr-Pennington doctrine arose out of the Supreme Court's efforts to reconcile the Sherman Anti-Trust Act with the First Amendment). In the present case, while Plaintiffs do rely on 42 U.S.C. § 1983, their theory of liability is premised on alleged violations of the Fourteenth Amendment, as well as constitutional and statutory rights under California law.
Additionally, Defendants have failed to establish the elements required for Noerr-Pennington immunity as described in Sosa. Sosa, 437 F.3d at 932. In Sosa, the Ninth Circuit required the defendant seeking Noerr-Pennington immunity to establish (1) that the suit burdened the defendant's ability to petition the government for redress, (2) that the burden could not be imposed in a manner consistent with the Constitution, and (3) that the allegations against the defendant clearly establish liability under the operation of a federal statute. Defendants' failure to make this showing also dooms their effort to establish Noerr-Pennington immunity.
6. Defendants Cannot Establish Immunity Under California Civil Code § 47(b)
Defendants' claim to immunity under Civil Code § 47(b) is similarly unavailing. Again, this Court rejected Defendants' claims to immunity in the September 29 Order.
To the extent Defendants seek to emphasize that their claim to immunity applies to conduct made during the criminal investigation and proceedings, the Court specifically stated that immunity did not apply to conduct which did not have a "'functional tie to the judicial process.'" (September 29 Order 21.) Indeed, the general formulation for immunity under § 47(b) requires that a "communication" be "'(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Olszewski v. Sripps Health, 30 Cal. 4th 798, 830 (2003)(citation omitted). Defendants' Second Motion does not establish that the conduct alleged to constitute Fourteenth Amendment violations, violations of privacy under California law, and/or a failure to protect private information, serve to "achieve the objects of the litigation" or "have some logical relation to the action." Id.
Additionally, despite the California Supreme Court's statement in Olszewski that the § 47(b) privilege generally does not extend to "tortious courses of conduct," id., it is apparent that the privilege does apply to some tortious conduct. See, e.g., Flores v. Emerich & Fike, 416 F. Supp. 2d 885, 900 (E.D. Cal. 2006) (noting that the privilege has been applied to abuse of process, fraud, invasion of privacy, and interference with contract). When reviewing the Second Motion to Dismiss, the Court views the complaint in a light most favorable to Plaintiffs.
Accordingly, at the current stage of the proceedings, the Court must read the Second Amended Complaint as alleging conduct that does not fall within the scope of the § 47(b) privilege. Accordingly, the Court must reject Defendants' claim to immunity on this basis.
Based on the foregoing analysis, Defendants' Motion to Strike (Docket No. 156) is DENIED. Defendants' Motion to Dismiss (Docket No. 138) is also DENIED, except that the Court clarifies, with respect to Plaintiffs' Fourteenth Cause of Action that any reliance on false light invasion of privacy is precluded. Defendants' Second Motion to Dismiss is accordingly GRANTED in that regard. Pursuant to Rule 12(f)(1), the Court orders the second sentence of paragraph 190, and the first sentence in paragraph 192, in Plaintiffs' Second Amended Complaint stricken. All other causes of action shall proceed in a manner consistent with this Order.
Additionally, while the Court concludes that entertaining Defendants' Second Motion to Dismiss had some limited utility in narrowing the arguments, many of the other arguments raised were either cumulative, premature, inadequately developed, and/or unsubstantiated. Defendants are directed to refrain from any further efforts to frustrate the timely resolution of this litigation.
IT IS SO ORDERED.