The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
This is an action brought by Plaintiffs the United States of America and the California Department of Toxic Substances Control ("Plaintiffs") pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA"), 42 U.S.C. § 9601, et seq., seeking, inter alia, the recovery of response costs related to the release of hazardous substances from the Lava Cap Mine Superfund Site.
This matter is currently set for a bench trial on October 31, 2012. On October 5, 2012, Plaintiffs requested that the Court augment its Final Pretrial Order in this matter, issued on October 1, 2012, so as to permit additional evidence concerning Defendant's claims that a Cleanup and Abatement Order ("CAO") issued by the California Regional Water Quality Control Board ("Water Board") in 1979 was thereafter rescinded. Plaintiffs claim that they did not know that Defendants intended to make that rescission argument until mid-July of 2012, when the logbook entry in question was included within Defendant's list of proposed trial exhibits. In the face of that evidence, Plaintiffs seek to introduce certain documents and to offer testimony from several former and current Water Board employees.
In opposition, Defendant points to the fact that in May of 2011, more than a year before Sterling identified the logbook entry, Defendant made exactly the same argument in opposing Plaintiffs' motion for summary judgment, arguing that "a [Water Board] log book shows that the CAO was rescinded." (ECF No. 130, 25:26-27). Defendant consequently argues that Plaintiffs were on notice of the issue well before July of 2012 despite their argument to the contrary.
Modification of the PTSO in this instance is proper only if the party seeking modification, here the Defendant, shows that "manifest injustice" will result in the absence of modification. Fed. R. Civ. Pro. 16(e); Byrd v. Guess, 137 F.3d 1126, 1132 (9th Cir. 1998) (superseded by statute on other grounds).
In making that determination, the Court should consider four factors: 1) the degree of prejudice or surprise to the Defendant if the order is modified; 2) the ability of Defendant to cure the prejudice; 3) any impact of modification on the orderly and efficient conduct of the trial; and 4) any willfulness or bad faith by Plaintiffs. Id. at 1132.
Defendant contends that Plaintiffs have shown no justification for waiting until now to address the rescission issue, and that adding witnesses at this late stage and offering them "for last-minute depositions is a burdensome and prejudicial distraction on the eve of trial." Def.'s Opp., 2:11-13. The Court agrees. Given the fact that this issue surfaced at the very latest almost a year before the Final Pretrial Conference, adding rebuttal witnesses at this juncture, through modification of the PTSO, would impact the orderly and efficient conduct of the trial, and offering to submit the witnesses now for deposition now, at the very eve of trial with trial preparation well underway, would prejudice the Defendant. Further, and on any even more fundamental basis, the defense argues that "[p]laintiffs have not shown that "manifest injustice" will result if they are denied the opportunity to present this additional evidence." The Court again agrees.
Plaintiffs have not demonstrated why the evidence and testimony at issue is so critical to their case that it would amount to a manifest injustice if the FPTO were not modified to permit such evidence/testimony. Plaintiffs' Request for Modification of the Final Pretrial Order (ECF No. 189) is accordingly DENIED.
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