United States v. Brace
| Decision Date | 12 August 2019 |
| Docket Number | Civil Action 1:17-cv-00006 (BR) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ROBERT BRACE, ROBERT BRACE FARMS, INC., AND ROBERT BRACE AND SONS, INC., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
I. INTRODUCTION
The United States of America initiated this action against Defendants Robert Brace, Robert Brace Farms, Inc. and Robert Brace and Sons, Inc.'s (collectively, "Defendants"), alleging that Defendants have repeatedly violated Section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a), and seeking injunctive relief as well as civil penalties pursuant to the Act. The following motions are currently before the Court: (1) the United States' motion to strike Defendants' response to the United States' motion for summary judgment on liability (Dkt. No. 154); (2) the United States' motion for summary judgment on liability (Dkt. No. 83); and (3) several motions in limine (Dkt. Nos. 82, 86, 87).
Having reviewed the motions, the oppositions thereto, the record of this case, as well as the relevant legal authorities, the Court will: (1) grant the United States' motion to strike Defendants' response to the summary judgment motion; (2) grant the summary judgment motion; and (3) strike as moot the remaining outstanding motions. The reasoning for the Court's decision follows.
This case has a long and taxing history. It arises from actions taken by Defendants dating back to the 1990s and continuing to the present with respect to two contiguous parcels of land owned by Defendants. The complexity of the issues in this case, the volume of the record evidence, and the span of time have all led to the case's sloth-like progression. However, the main cause of delay has been the dilatory and insolent behavior of Defendants. Having repeatedly directed Defendants to comply with the Court's orders and the Federal Rules of Civil Procedure and having Defendants' repeatedly disregard opportunities to correct their behavior, the Court has reached its limit. The Court will now exclude Defendants' undisclosed expert opinion and related exhibits and strike Defendants' over-length brief in opposition to the United States' summary judgment motion on liability. Because the United States' summary judgment motion is now uncontested, the Court will grant the motion.
As stated above, the United States initiated this lawsuit on January 9, 2017, seeking injunctive relief and civil penalties against Defendants for violating Section 301(a) of the CWA, by discharging pollutants into the waters of the United States, see Dkt. No. 1. Broadly speaking, the United States charges Defendants with clearing statutorily protected wetlands located on a 20.01-acre plot of land, known as the "Marsh Site,"1 in the townships of McKean and Waterford, Erie County, Pennsylvania. Id. at ¶¶ 1, 28, 38. The United States alleges that Defendants' actions caused dirt, rocks, and other debris—which the CWA defines as pollutants—to be discharged into the wetlands and adjoining Elk Creek, which in turn flows into Lake Erie. Id. at¶¶ 31, 39, 47. As the Defendants did not obtain a Section 404 permit for the discharge, id. at ¶ 41, the United States claims a CWA violation.
At the same time that the United States initiated the instant action, it also moved to enforce a consent decree that the parties entered into as part of another lawsuit filed in 1990 in the Western District of Pennsylvania (hereinafter "the 1990 Action"). See United States v. Brace, et al., No. 90-229 (W.D. Pa. filed Oct. 4, 1990). The Honorable Susan Paradise Baxter presides over the 1990 Action. The 1990 Action involved another parcel of land—known as "the Murphy Site"—that is located just south of the Marsh Site. Dkt. No. 84 at ¶¶ 5-11.2 The United States initiated the 1990 Action based on factual allegations similar to those alleged in the instant action, i.e., that Defendants "cleared, mulched, churned, levelled, and drained the formerly wooded and vegetated" Murphy Site in order to make it suitable for farming. United States v. Brace, 41 F.3d 117, 121 (3d Cir. 1994). The district court dismissed the United States' complaint, concluding that Defendants' actions were exempt from the permitting requirements under the CWA. Id. at 120. The Third Circuit Court of Appeals reversed the district's decision and held that Defendants were liable of CWA violations and remanded the matter to the district court to assess penalties. See id. at 130. Thereafter, the parties entered into a consent decree to resolve Defendants' liability.
On the same day that the United States initiated the instant action, it also filed a motion in the 1990 Action before Judge Baxter to enforce the consent decree. Defendants moved to consolidate the 1990 Action and the instant action. Dkt. No. 92. The Court denied the motion on November 14, 2018. Dkt. No. 120. Nevertheless, Defendants have repeatedly attempted tointermingle the cases and the Court has had to repeatedly remind Defendants that the actions are separate and distinct from each other. See Dkt. No. 38 at 2; Dkt. No. 62 at 1-2; Dkt. No. 75 at 7; Dkt. No. 142 at 1 n.1, 5.
What followed the initiation of this action is a procedural history replete with extended deadlines, missed deadlines, and completely ignored deadlines—all by Defendants. In addition, Defendants have flagrantly disregarded the Federal Rules of Civil Procedure pleading requirements and this Court's instructions outlined in its Standing Order for Civil Cases. See Dkt. No. 41. And, when given repeated opportunities to reform their ways, instead of cleaning up their act, Defendants doubled down in their disregard for this Court's orders and instructions. Indeed, it taxes this Court's patience to recount the cycle of Defendants' misbehavior, Court-ordered compliance, and Defendants' disregard of such orders. Nevertheless, given the draconian nature of the sanction the Court will impose with this order, such a recitation is necessary.
Defendants' first misdeed was their failure to properly plead their affirmative defenses in the answer to the complaint. Dkt. No. 7. Defendants asserted eleven affirmative defenses, most of which failed to meet Federal Rule 8's pleading requirements. Id. at ¶¶ 54-64. The United States moved to strike eight of the eleven affirmative defenses, which this Court granted. In doing so, this Court noted that this case "span[s] at least six years" involving over 20 acres to which Defendants' "one-sentence paragraphs contain no particularities at all." Dkt. No. 40 at 2. "In a case of this magnitude," this Court went on, "such vague accusations cannot be expected to put the United States on notice." Id.
Next, the United States informed the Court that it was having a difficult time workingwith Defendants to reach an agreed protocol for Electronically Stored Information ("ESI"), as they are required to do under Federal Rule 26(f). Dkt. No. 25. These difficulties included evasiveness from Defendants' counsel in answering emails, late replies, and attempts to include superfluous information and inappropriate discovery requests in the ESI protocol. See generally id. The United States, therefore, moved for entry of an order regarding discovery of ESI. Id.
While that motion was pending, Defendants moved for an extension to complete fact and expert discovery, alleging that they needed more time to complete and submit their rebuttal expert reports. They also claimed that more time was needed to allow them to complete the deposition of the respective expert witnesses. Dkt. No. 35. The United States objected claiming that Defendants had not shown good cause for the extension. Dkt. No. 36. On January 23, 2018, the Court adopted the United States' proposed ESI protocol and, over the United States' objection, granted Defendants' extension request. Dkt. No. 38.
Thereafter, on March 23, 2018, approximately three weeks after the already extended discovery deadline had passed, Defendants moved for another extension of the deadline, this time requesting a four-month extension. Dkt. No. 47. Defendants claimed that the extension was necessary so that they could produce an expert report on the hydrology of Defendants' land. The United States again objected the extension request. Dkt. No. 48. The Court granted Defendants' extension request for the limited purpose of producing the hydrology report. Dkt. No. 49. However, the Court warned Defendants that "[f]ailure to timely provide the Government with this expert report shall result in the Court prohibiting Defendants from using it at trial." Id.
The Court's admonishment obviously was not enough because Defendants did not provide the expert report to the United States until June 4, 2018; 10 days after it was due and with no explanation or attempt to extend the deadline. Dkt. No. 59 at ¶¶ 6-8. The United Statesmoved for an order to show cause as to why the expert report should not be stricken from the record; the Court granted the motion and ordered the Defendants to show cause as to why the report should not be excluded. Dkt. Nos. 59, 60. Ultimately, however, the Court accommodated Defendants yet again. In an order dated June 15, 2018, the Court declined to exclude the expert report, Dkt. No. 62. The United States moved for reconsideration, but this Court denied the motion. Dkt. Nos. 63, 67.
On June 25, 2018, the parties informed the Court that they had run into yet another discovery issue, and the Court scheduled a telephonic hearing for June 28, 2018. Dkt. No. 68. During that hearing, Defendants requested yet another extension to reopen and complete expert discovery. Dkt. No. 70. The Court denied the request. Id. In doing so, the Court noted that the ...
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