The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING (1) MOTION FOR NEW TRIAL / RECONSIDERATION [DOC. 132] AND (2) MOTION FOR RELIEF FROM FAILURE TO FILE DOCUMENTS [DOC. 134]
Pending before the Court is Plaintiffs' Motion for New Trial (Doc. 132), and Motion for Relief From Failure to File Documents in Opposition to Motion for Summary Judgment (Doc. 134). The Court decides the matters on the papers submitted. See Civ.L.R. 7.1.d.1. For the reasons discussed below, the Court DENIES the motions, and ORDERS a Pretrial Conference for March 15, 2010 at 10:30 a.m.
I. PROCEDURAL BACKGROUND.
The factual background is set forth in detail in this Court's previous orders, and thus need not be repeated here. It is sufficient to state that this lawsuit arises out of the fatal shooting of Guillermo Martinez Rodriguez by U.S. Border Patrol Supervisory Agent Faustino Campos at the U.S.-Mexico border. After being shot, Rodriguez was not apprehended, but instead fled into Mexico. He was eventually taken to a Red Cross hospital, where he died of the gunshot wound.
On December 20, 2006, Plaintiffs filed this wrongful-death and survival action against Defendants United States of America and Agent Campos under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Plaintiffs include the mother and two children of Rodriguez, as well as Myra Ponce, the mother of the two children.
On March 27, 2009, Defendant Campos filed a motion to dismiss for lack of standing, and motion for summary judgment based on the qualified-immunity defense. On April 20, 2009, Plaintiffs opposed the motions.
On April 27, 2009, Defendant Campos filed written objections to certain exhibits in Plaintiffs' opposition. (See Obj. [Doc. 82-1].) Defendant Campos objected to, among other things, Plaintiffs' expert declarations because they were not signed under penalty of perjury.
On May 5 and 6, 2009, Plaintiffs re-filed the expert declarations that were signed under penalty of perjury. Defendant thereafter objected to Plaintiffs re-filed declarations on the ground that they were untimely. Accordingly, on May 22, 2009, Plaintiffs filed a motion to continue the hearing on Defendants' motions and to allow Plaintiffs to file the corrected expert declarations. On July 29, 2009, the Court granted Plaintiffs' motion.
On August 3, 2009, having considered the corrected expert declarations, the Court issued an order denying the motion to dismiss, but granting the summary-judgment motion (the "Order" [Doc. 131]). In deciding the motions, the Order first addressed Defendants' remaining evidentiary objections, including an objection to Plaintiffs' submission of a translation of the Tijuana Medical Examiner's Investigation and Autopsy Report (the "Autopsy Report"). Plaintiffs did not respond to the objections, which the Court sustained.
The Order next evaluated Defendant Campos' argument that the Fourth Amendment did not apply to this case. Because Defendant Campos did not search or seize Rodriguez, the Court found that the Fourth Amendment did not apply, and thus evaluated the qualified immunity defense under the applicable Fifth Amendment standard. Ultimately, the Order concluded that because the undisputed facts established that Defendant Campos reasonably feared for his safety when he fired his weapon, the qualified-immunity defense barred Plaintiffs' claims against Defendant Campos. Plaintiffs' motions for reconsideration and for relief from their failure to file documents followed.
A. Plaintiffs failed to comply with the Local Rules and Chamber Rules
As an initial matter, Plaintiffs' motions are denied for failure to follow this Court's Chamber Rules and the Southern District Local Rules. The Chamber Rules provide that "[n]o motion for reconsideration shall be filed without leave of Court" and the party seeking reconsideration "shall file an ex parte application for leave to file a motion to reconsider." (See Chamber Rules, at p.3, emphasis in original.) Additionally, the rules require that the ex parte application not exceed 4 pages, include a brief summary of the party's argument, and "shall be accompanied by a declaration as required by Civil Local Rule 7.1(i)(1)." (Id.) The referenced local rule requires a declaration by the party and attorney setting forth: the material facts and circumstances surrounding each prior application, including inter alia: (1) when and to what judge the ...