UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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1 M. REED HOPPER, Cal. Bar No. 1 ANTHONY L. FRANÇOIS, Cal. Bar No. 0 Pacific Legal Foundation Sacramento, California Telephone: ( -1 Facsimile: ( - See next page for additional Attorneys for Plaintiffs and Counterclaim-Defendants UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Sacramento, CA ( -1 FAX ( DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, v. Plaintiffs, UNITED STATES ARMY CORPS OF ENGINEERS; et al., Defendants. UNITED STATES OF AMERICA, v. Counterclaim-Plaintiff, DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, Counterclaim-Defendants. No. :-cv-00-kjm-ac (TEMP POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR ENTRY OF PARTIAL JUDGMENT UNDER FED. R. CIV. P. (b Date: July, 0 Time: :00 A.M. Courtroom:, th Floor Judge: Hon. Kimberly J. Mueller Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP

2 Additional Attorneys for Plaintiffs and Counterclaim-Defendants DAVID M. IVESTER (Bar No. PETER PROWS (Bar No. Briscoe Ivester & Bazel LLP Sansome Street, Seventh Floor San Francisco, CA Telephone: ( 0-00 Facsimile: ( -0 Sacramento, CA ( -1 FAX ( - 1 GERALD E. BRUNN (Bar No. 00 Law Offices of Brunn & Flynn 1 th Street, Suite 00 Modesto, CA Telephone: (0 1- Facsimile: ( Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP

3 INTRODUCTION Duarte Nursery, Inc. (Duarte Nursery, and John Duarte (collectively Duarte move the Court to enter partial judgment, under Federal Rule of Civil Procedure (b, on Duarte s First, Second, Fifth, and Sixth Claims for relief as set forth in the Second Amended Complaint, ECF 0, based on the Court s June, 0, ruling that the Army Corps of Engineers February, 0, cease and desist order did not deprive Duarte of liberty or property, and that Duarte s retaliation claim is barred by sovereign immunity. ECF. PROCEDURAL HISTORY Duarte filed the Second Amended Complaint with leave of the Court on September, 0. ECF 0. The Second Amended Complaint substantially restates three claims (the First, Second, and Sacramento, CA ( -1 FAX ( Fifth from the original Complaint against the Army Corps of Engineers for violation of Duarte s due process rights. ECF 0, at -. The essence of Duarte s due process claims are that the Army Corps deprived Duarte of property, to wit the use of farm land, by means of a cease and desist order issued February, 0, without a prior or subsequent hearing, in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. The Second Amended Complaint also alleged a Sixth Claim for retaliation in violation of the First Amendment. ECF 0, at -0. On October, 0, the parties filed Motions for Summary Judgment on Duarte s due process claims, ECF,, and the United States moved for dismissal of summary judgment on the retaliation claim, ECF. The Court heard oral argument on those motions on November 0, 0. ECF. On June, 0, the Court granted summary judgment in favor of the Army Corps of Engineers, on the ground that the cease and desist order did not deprive Duarte of liberty or property, and dismissed the retaliation claim without leave to amend on the ground that it is barred by sovereign immunity. ECF at, 1-, -. This motion asks the Court to enter partial final judgment on the First, Second, Fifth, and Sixth Claims in Duarte s Second Amended Complaint, consistent with the Court s June, 0, ruling on those claims. On June 0, 0, the Court vacated the previously set trial date of July, 0, and reset the final pretrial conference for August 1, 0. ECF. /// Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - 1 -

4 LEGAL STANDARD Federal courts of appeals have jurisdiction over appeals from final decisions of federal district courts. U.S.C. 1. Ordinarily, an order which terminates fewer than all claims, or claims against fewer than all parties, does not constitute a final order for purposes of appeal under U.S.C. 1. Carter v. City of Philadelphia, 1 F.d, (d Cir.. But, Rule (b creates an exception to this finality rule, providing that in actions involving multiple parties or more than one claim for relief, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Fed. R. Civ. P. (b. It is left to the sound judicial discretion of the district court to determine the appropriate time when each final decision in a multiple claims action is ready for Sacramento, CA ( -1 FAX ( - 1 appeal. Curtiss Wright Corp. v. General Elec. Co., U.S. 1, (0; see also Wood v. GCC Bend, LLC, F.d, (th Cir. 00. Recent unpublished decisions of this Court have applied Rule (b when three conditions are met: (1 multiple claims or multiple parties; ( at least one claim or the rights and liabilities of one party have been finally decided; and (... there is no just reason for any delay in entering judgment and allowing an appeal. Nuwintore v. United States, No. 1:-CV-0, 0 WL (E.D. Cal. Dec., 0 (citing Estate of Kligge v. Fidelity Mortg. of Cal., No. CIV F , 00 WL 0, at *1 (E.D. Cal. Dec.1, 00. When determining whether there is a just reason for delay a court must take into account judicial administrative interests as well as the equities involved and may consider such factors as whether the claims under review were separable from the other remaining to be adjudicated. Curtiss Wright, U.S. at. ARGUMENT I THIS CASE INVOLVES MULTIPLE CLAIMS The original Complaint stated Duarte s due process claims against the Army Corps of Engineers, an agency of the United States Government. The United States in turn filed a counterclaim against Duarte for alleged violations of the Clean Water Act. The Second Amended Complaint restates the same due process claims as the original Complaint, and adds a claim for First Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - -

5 Amendment retaliation. Duarte s due process and retaliation claims against the Army Corps are separate claims from the United States Clean Water Act claims against Duarte. ECF (March, 0, Order Denying Second Motion to Dismiss Due Process Claims, at :- (litigation of government s Clean Water Act claims will not afford hearing on whether cease and desist order violated due process rights. The Second Amended Complaint adds a First Amendment retaliation claim against the Army Corps and the United States. This is also a separate claim from the United States Clean Water Act claim against Duarte, although it has some relation in that success on the retaliation claim would entitle Duarte to injunctive relief against the further prosecution of the Clean Water Act claim, unless and until the United States could demonstrate that it would have brought its claim for Sacramento, CA ( -1 FAX ( - 1 non-retaliatory reasons. The Court should consider the claim separate for purposes of this motion because it has entirely different elements and factual issues from the Clean Water Act claim. Compare June, 0, Ruling, ECF, at (listing elements government must prove on Clean Water Act claim with March, 0, Ruling, ECF, at : - : (listing elements of claim for First Amendment retaliation. II DUARTE S DUE PROCESS AND RETALIATION CLAIMS AGAINST THE ARMY CORPS HAVE BEEN FINALLY DECIDED 0 1 The Court s June, 0, Ruling is in favor of the government on all of Duarte s due process claims, on the ground that the cease and desist order, which is the government action challenged in those three claims, does not deprive Duarte of liberty or property within the meaning of the Due Process Clause. ECF, at 1-. A deprivation of life, liberty, or property is an element of any claim for violation of the Due Process Clause. Arnett v. Kennedy, U.S., 0 (. Since the Court has held that the Order does not deprive Duarte of liberty or property, ECF at :-0, the Order is final as to Duarte s due process claims, and there are no additional issues to be litigated under this claim in the trial court. The June Order also finally disposes of Duarte s retaliation claim through dismissal without leave to amend, based on the ruling that the claim is barred by sovereign immunity. ECF Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - -

6 at. Since the Court has ruled that this claim is barred as a matter of law, and dismissed it without leave to amend, there is nothing additional to litigate in this Court on the claim. III THERE IS NO JUST REASON TO DELAY ENTERING JUDGMENT ON DUARTE S DUE PROCESS AND RETALIATION CLAIMS A. Duarte s Due Process Claims Are Severable, and Duarte Remains Subject to the Cease and Desist Order During the Remaining Trial Court Proceedings Duarte s due process claims are amenable to separate proceedings from the government s Clean Water Act claims. While the challenged cease and desist order arises from the same plowing for which the government is litigating the Clean Water Act claim, the pertinent factual and legal Sacramento, CA ( -1 FAX ( - 1 questions in the two claims are different. ECF, at :-. The Clean Water Act claim, which remains before the Court for a trial on remedies, depends on whether Duarte discharged pollutants to waters of the United States without a permit, as well as ancillary factual questions that bear on the scope of any penalty that may be imposed. The due process claims, on the other hand, do not depend on whether Duarte violated the Clean Water Act. ECF, at :-. They only depend on whether the cease and desist order deprived Duarte of property without a constitutionally adequate hearing. These legal questions are resolved by the relatively narrow set of facts related to 0 1 communications between Duarte and the Corps subsequent to the plowing in question. None of these facts are germane to whether Duarte violated the Act by plowing the property. The government s Clean Water Act claim is not even a mandatory counterclaim to Duarte s original due process complaint. The evidence, and issues of fact and law, which resolve whether Duarte violated the Act are different from those which will resolve whether the Corps violated Duarte s due process and First Amendment rights by issuing the cease and desist Order and prosecuting the Counterclaim. Since it does not arise out of the same transaction or occurrence, the Counterclaim is not compulsory. Fed. R. Civ. P (a(1(a; Pochiro v. Prudential Ins. Co. of America, F.d, (th Cir.. There is no just reason to delay appeal on the due process claims, because Duarte remains subject to the cease and desist order as a result of the Court s ruling, and will remain subject to it Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - -

7 for the foreseeable future, including during the pendency of the remaining Clean Water Act remedy proceedings before this Court. 1 ECF at. It would be unjust to delay appeal of the due process claims, because it would unnecessarily extend the period of time for which Duarte is subject to the Order, before the question of whether the Order deprives Duarte of property is subject to appellate review. Nor would appeal of the due process claims interfere with the remaining Clean Water Act proceedings before the trial court. A Ninth Circuit reversal would not foreseeably require retrial of any of the Clean Water Act remedy proceedings, since the facts that bear on whether the Corps afforded an adequate hearing would not intersect to any foreseeable degree with those that bear on the scope of any penalty for any violation of the Clean Water Act. Sacramento, CA ( -1 FAX ( - 1 B. The Remedy in Duarte s Retaliation Claim, If Successful on Appeal and Then on Remand, Would Be To Bar Further Prosecution of the Clean Water Act Claim There is no just reason to delay entry of judgment on the retaliation claim. Rather, it would be unjust to delay entry of judgment. If Duarte prevails on appeal on the issue of sovereign immunity, then on remand Duarte would have the opportunity to litigate the merits of the retaliation claim. If successful on the merits before the trial court, Duarte s remedy would be an order barring further prosecution of the Clean Water Act claim unless and until the Army Corps can establish that 0 1 it would have referred the matter to the Justice Department absent Duarte s suit against the Corps. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, U.S., (. But this remedy provides no relief if the Clean Water Act claims, including any remedy thereunder, have already been fully litigated. So, there is reason to enter partial judgment without delay on the retaliation claim, so that Duarte can challenge the sovereign immunity ruling on appeal and, if successful on appeal, litigate the merits of the claim before this Court. It is true that entry of partial judgment on the retaliation claim, could lead to modification of the remaining trial court proceedings. If the Court grants this motion as to the retaliation claim, 1 As previously noted, the case is not currently set for trial, and it will not be known before the August 1 pretrial conference when it will be set. The penalty trial will require the testimony of numerous expert witnesses on both sides, and it is unknown at this time when they will all be available for trial. Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - -

8 Duarte may subsequently move to stay further litigation of the Clean Water Act claims in this Court pending the outcome of the appeal. However, when determining whether there is any just reason to delay entry of partial judgment on the retaliation claim under Rule (b, Duarte submits that the balance of equities favors the opportunity to appeal the adverse sovereign immunity ruling over the possibility of a stay of further proceedings in this Court pending the appeal. CONCLUSION This case involves multiple claims, and the June Ruling provides a final disposition of Duarte s due process and retaliation claims by holding that the cease and desist order did not deprive Duarte of property under the Due Process Clause, and that sovereign immunity bars the retaliation claim. Duarte s due process claims against the government are legally separable from the United Sacramento, CA ( -1 FAX ( - 1 States Clean Water Act claim against Duarte, and there is no just reason to delay appellate review of the Court s ruling that the cease and desist order does not deprive Duarte of property. Duarte s retaliation claim is related to the government s Clean Water Act claim to the extent that a remedy on Duarte s claim would impede the government s ability to further litigate its claim. Even so, because of this fact, there is no just reason to delay entry of judgment on the retaliation claim. The MOTION FOR ENTRY OF PARTIAL JUDGMENT on Duarte s First, Second, Fifth, and Sixth Claims should be granted. 0 1 DATED: June 0, 0. Respectfully submitted, M. REED HOPPER ANTHONY L. FRANÇOIS DAVID M. IVESTER PETER PROWS GERALD E. BRUNN By /s/ Anthony L. François ANTHONY L. FRANÇOIS Attorneys for Plaintiffs and Counterclaim- Defendants Duarte Nursery, Inc., et al. Duarte s previous motion for a stay of remaining trial proceedings in this Court is set for hearing on July 1, 0. ECF. Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - -

9 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION FOR ENTRY OF PARTIAL JUDGMENT UNDER FED. R. CIV. P. (b have been served through the Court s CM/ECF system on all registered counsel this 0th of June, 0. Additionally, I hereby certify that copies of the foregoing documents have been hand delivered to GREGORY T. BRODERICK, Assistant United States Attorney at 01 I Street, Suite -0, Sacramento, California, this 0 th of June, 0. Respectfully submitted, /s/ Anthony L. François ANTHONY L. FRANÇOIS Sacramento, CA ( -1 FAX ( - 1 Attorneys for Plaintiffs and Counterclaim- Defendants Duarte Nursery, Inc., et al. 0 1 Points and Authorities in Support of Plaintiffs Motion for Entry of Partial Judgment Under Fed. R. Civ. P. (b No. :-cv-00-kjm-ac (TEMP - -

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