United States District Court, E.D. California
ORDER RE: DEFENDANTS’ MOTION TO BIFURCATE, OR
IN THE ALTERNATIVE, TO SEVER
current Plaintiffs are Michael Ioane Sr. and Shelly Ioane who
lived at 1521 Fruitland Ave., Atwater, CA. They are a married
couple involved in tax disputes with the United States. Kent
Spjute, Jean Noll, Jeff Hodges, Brian Applegate, and Michelle
Casarez are Internal Revenue Service agents (“Federal
Agents”). Based on the affidavit of Kent Spjute, the
United States was able to obtain a search warrant for
Plaintiffs’ residence to collect records related to
taxation. The search was carried out by the Federal Agents on
June 8, 2006. This search forms the basis for the claims in
Ioane Sr. and Shelly Ioane, together with former plaintiffs
Glen Halliday, Ashley Ioane, and Michael Ioane Jr., filed
suit against the Federal Agents and the United States on
April 20, 2007 and a First Amended Complaint shortly
thereafter. Docs. 1 and 39. The case was stayed pending
resolution of a criminal case against Michael Ioane Sr. for
tax fraud conspiracy, based in part on the evidence seized
during the search. Crim. Case. No. 09-0142 LJO. Michael Ioane
Sr. was convicted on October 3, 2011 after a jury trial. He
appealed the conviction, but it was affirmed. Michael Ioane
Sr. has filed a habeas corpus petition under 28 U.S.C. §
2255. In the meantime, the stay was lifted in this case. Doc.
Michael Ioane Sr. and Shelly Ioane originally pursued several
causes of action against the United States and the Federal
Agents. Through several rounds of motions, the only claims
left are Fourth Amendment excessive force claims against
Defendants Hodge and Applegate and Fourth Amendment violation
of bodily privacy claims against Defendant Noll.
Specifically, Plaintiffs allege that Defendants Hodge and
Applegate pointed guns at the heads of Plaintiffs and that
Defendant Noll insisted upon entering the restroom with
Plaintiff Shelly Ioane to witness her relieve herself.
last summary judgment motion, Defendant Noll sought qualified
immunity for her actions in monitoring Plaintiff Shelly
Ioane. Doc. 369. Qualified immunity was denied. Doc. 384. In
response, Defendant Noll filed a notice of appeal to the
Ninth Circuit. Doc. 394. Defendants then filed a motion to
bifurcate the claims against Defendant Noll from the claims
against Defendants Hodge and Applegate, or in the
alternative, to sever the claims. Doc. 398. Plaintiffs oppose
the motion. Doc. 401.
convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or
third-party claims.” Fed. Rule Civ. Proc. 42(b). This
rule “confers broad discretion upon the district court
to bifurcate a trial, thereby deferring costly and possibly
unnecessary proceedings pending resolution of potentially
dispositive preliminary issues.” Zivkovic v. S.
Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).
“Courts may consider several factors in determining
whether bifurcation is appropriate, including whether the
issues are clearly separable, and whether bifurcation would
increase convenience and judicial economy, reduce the risk of
jury confusion, and avoid prejudice to the parties. The party
requesting bifurcation has the burden of proving that
bifurcation is justified given the particular
circumstances.” Aoki v. Gilbert, 2015 U.S.
Dist. LEXIS 131828, *14 (E.D. Cal. Sept. 28, 2015), citations
Rules of Civil Procedure 21 allows a court to “sever
any claim against a party.” Generally, “[a] court
considers the same factors relevant to severance under Rule
21 in deciding whether to bifurcate under Rule 42(b).”
Anticancer, Inc. v. Pfizer Inc., 2012 U.S. Dist.
LEXIS 40979, *4 (S.D. Cal. Mar. 26, 2012), citing Morris
v. Northrop Grumman Corp., 37 F.Supp.2d 556, 580
(E.D.N.Y. 1999). “The difference between severance
under Rule 21 and separation under Rule 42(b) is that
severance results in separate and independent actions with
separate final judgments, whereas separation does not.”
Brophy v. Day & Zimmermann Hawthorne Corp., 2012
U.S. Dist. LEXIS 33955, *4 n.2 (D. Nev. 2012), citing 4 James
Wm. Moore et al., Moore’s Federal Practice §
21.06 (3d ed. 2011).
significance of bifurcation in this case is that doing so
would allow the excessive force claims to go to trial on the
currently scheduled trial date of September 7, 2016.
Defendant Noll has appealed as a matter of right the denial
of qualified immunity. That appeal prevents the whole case
from moving forward to trial at this time.
opposition to this motion, Plaintiffs reject this contention.
They argue that Defendants’ appeal on the question of
qualified immunity is based on issues of fact rather than
issues of law which render it unfit for interlocutory appeal.
Doc. 401, at 2. The Ninth Circuit has stated “we have
jurisdiction over an interlocutory appeal from the denial of
qualified immunity where the appeal focuses on whether the
defendants violated a clearly established law given the
undisputed facts, while we do not have jurisdiction over an
interlocutory appeal that focuses on whether there is a
genuine dispute about the underlying facts.” Knox
v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.
1997). Plaintiffs assert that the appeal is frivolous and
should be subject to the Chuman rule: “Should
the district court find that the defendants’ claim of
qualified immunity is frivolous or has been waived, the
district court may certify, in writing, that defendants have
forfeited their right to pretrial appeal, and may proceed
with trial. In the absence of such certification, the
district court is automatically divested of jurisdiction to
proceed with trial pending appeal.” Chuman v.
Wright, 960 F.2d 104, 105 (9th Cir. 1992). Thus,
Plaintiffs assert that there is no need to bifurcate as the
all the claims in this case may proceed to trial on September
assert that “[t]he Noll appeal is not frivolous and is
not based on insufficiency of evidence or disputed facts
..... For purposes of this appeal only, defendant Noll
accepts as true all of the facts alleged by Shelly Ioane in
the second amended complaint and in the portions of her
deposition attached to the motion for summary judgment. The
only issues on appeal will be whether those facts, as a
matter of law, (1) constituted a violation of a
constitutional right to bodily privacy and (2) violated law
that was sufficiently clearly established to put a reasonable
official on notice that the conduct complained of violated
such a constitutional right.” Doc. 404, 3:1-20. The
appeal fits within what is permitted, and the law is not so
clear cut as to render it frivolous. Based on the
representations of the parties, there is no basis for finding
that this court retains jurisdiction over the claims against
Defendant Noll nor is there a basis for invoking
initial matter, Plaintiffs assert that this issue has already
been ruled upon by the court. Plaintiffs note that Defendants
have requested bifurcation in two prior motions, both of
which were denied. However, the prior motions involved
requests to phase the liability and damages portions of the
trial. See Docs. 284 and 372. Defendants had never asked to
separate the claim against Defendants Hodge and Applegate
(excessive force) from the claim against Defendant Noll
(violation of bodily privacy). The prior orders denying the
requests to bifurcate do not address the issue at bar. Docs.
312 and 379. The relevant factors, “whether the issues
are clearly separable, and whether bifurcation would increase
convenience and judicial economy, reduce the risk of jury
confusion, and avoid prejudice to the parties”
(Aoki v. Gilbert, 2015 U.S. Dist. LEXIS 131828, *14
(E.D. Cal. Sept. 28, 2015)), have never been examined in this
Separability of Claims
excessive force claims arise from allegations that Defendants
Hodge and Applegate pointed their firearms at Plaintiffs in
an unreasonable manner when they first entered
Plaintiffs’ residence to execute the search warrant.
The violation of bodily privacy claim arises from a separate
set of actions by Defendant Noll in monitoring Plaintiff
Shelly Ioane in the bathroom a significant while later. The
warrant itself is not being challenged as part of this suit.
While they share general background facts (the warrant and
reason the Federal Agents were ...