Docstoc

70 Request for Reconsideration - Opposition

Document Sample
70 Request for Reconsideration - Opposition Powered By Docstoc
					Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8

Document 70

Filed 10/31/2007

Page 1 of 4

Mark A. Wasser CA SB #60160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser!almarkwasser.com Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 (661) 868-3805 E-maiLmnations@co.kern.ca.us Attornevs for Defendants Countv of Peter Bryan, irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragiand, Toni Smith

9
10

11
12

13
14 15 16 i7
18
I

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

DAVID F. ,JADWIN, D.O. Plaintiff,
\IS.

) Case No.: 1:07-cv-00026-0WW-TAG
)

) DEFENDANTS' OPPOSITION TO ) PLAINTIFF'S REQUEST FOR
)

RECONSIDERATION

19 20 21 22 23 24 25 26

COUNTY OF KERN. et aI., Defendants.

) Locai Rule 72-303] ) [28 U.S.C. § 636(b)(1 ) ) Date Action Filed: January 6, 2007 ) Trial Date: August 26, 2008 ) )

I

~)
Defendants submit this memorandum in opposition to Plaintiffs request for reconsideration by the District Court of Magistrate Judge's ruling on Plaintiffs motion to strike fifth affirmative defense.

27 28

III III
1
DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSIDERATION

Case 1:07-cv-00026-OWW-TAG

Document 70

Filed 10/31/2007

Page 2 of 4

I

I.

PLAINTIFF MISSTATES THE CASE

2 3 4 5 6 7
8 ii,

Plaintiffs request for reconsideration misrepresents the record. For example, on page 2:2-10 of PlaintifT s request for reconsideration, Plaintiff asserts that "the parties narrowed and resolved the [fifth affirmative defense] to a mutual understanding" that it was based on a theory of "comparative fault" This is not true, The parties did not "narrow" any issues and had no "understanding." One has only to read what the parties have written to realize how polarized their positions are, Defendants' m(,m'Jra,ndum opposition to the motion to strike

9 10 II 12 13 14 15 16 17 18 19 20
21

clearly stated Defendants position, Defendants liberally quoted the allegations from PlaintilTs complaint regarding "hostile work environment". (Defendants' Memorandum of Points and Authorities opportunity to Opposition to
rt"rn"pr

,,~,mU'H

to 0U'''U,P, 3:3-

Defendants argued own
hNlm!lnr

should have an

and introduce evidence

as it rehites to

allegations of hostile work environment Defendants specifically and expressly disclaimed any theory oFcontributory negligence," (Defendants' Memorandum of Points and Authorities in Opposition to Motion to Strike, p, 4:22-23,) Plaintiff filed a reply memorandum in support of his motion to strike after Defendants filed their opposition memorandum, Thus, Plaintiff knew exactly what Defendants' position was and he not had a full opportunity to reply, he did reply, His assertion that he "relied" on an i is squarely contradicted by papers Defendants filed is not worthy

"understanding" further comment,
II.

THE PARTIES ARE JUST BEGINNING DISCOVERY

22 23 24 25 26
27 28

Plaintiff asserts that the fifth affirmative defense "fails to provide fair notice" of the defense, Not including this memorandum, there have been more than 70 pages wTitten to date about the fifth affirmative defense, It has been analyzed and discussed ad naseum. Plaintiff has full notice of what it is about Very simply, it puts Plaintiff on notice that his own behavior is at issue. It is not complicated.
III III
2
DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSlDERA TION

Case 1:07-cv-00026-OWW-TAG
1

Document 70

Filed 10/31/2007

Page 3 of 4

Plaintiff is evidently either ashamed or embarrassed about his behavior and would prefer that Defendants be precluded from developing evidenee about it. However, Defendants are entitled to develop a defense by, among other things, showing how Plaintiffs behavior eroded the work environment at Kern Medieal Center. The Magistrate Judge reasonably gave Plaintiff an opportunity to renew his motion to strike if Defendants are unable to develop evidence to support the fifth affirmative defense, (Order denying Motion to Strike, p. 7:3-5.) Defendants had made Plaintiff the same offer during meet-and-confer f(n)Cf,SS There is no lack of notice regarding the meaning of thefit1.h affirmative defense.

2
3

4 5
6 7 8 9 10

m.
unclean hands,

PLAINTIFF MISREPRESENTS THE MAGISTRATE'S ORDER the Magistrate Judge estoppel, an erstwhile defense raised the can be loosely defenses as

11
12

Plaintiff asserts

13
14

'hostile work environment causation.''' Plaintiff misstates the Magistrate Judge's Order. On page 6 of her Order, the Magistrate Judge discussed the concepts of 'unclean hands" and "equitable estoppel" as examples of theories that subject a plaintiffs behavior to scrutiny. Nothing in the Order can be read as injecting new defenses into the ease and, to the cxtent Plaintiff suggests it does, Plaintiff is mistaken. Plaintiff knows his behavior is at issue and it will affect the relief that may

15
16 17
18

19

awarded. The Magistrate Judge correctly concluded that the Defendants have an opportunity to explore it.

20
21

IV.

CONCLUSION

22
23
24 25

The Magistrate Judge's Order thoughtfully and thoroughly analyzes the fit1.h affirmative defense. Her Order denied Plaintiff s motion to strike without prejudiee, thereby giving Plaintiff the opportunity to renew his motion ifthe Defendants are unable to develop faets to support the fifth affirmative defense. That holding is not only legally sound, it is fair.

26
27

III III III
3
DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSIDERATION

28

Case 1:07-cv-00026-OWW-TAG

Document 70

Filed 10/31/2007

Page 4 of 4

The request for reconsideration should be denied and the Magistrate Judge's Order 2 3 should stand. Respectfully submitted,

4 5
6 7 8 9 ]0
]]

Dated: October 3], 2007

LAW OFFICES OF MARK A. WASSER

Mark A. Wasser Atlorrlev for Defendants.

of

et

]2
13

]4
]5 ]6 ]7 ]8 ]9 20

21
22

23
24
25

26
27

28
4
DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSIDERATION


				
DOCUMENT INFO
Description: David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.