236 P Mx Amend Sac - P Reply

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LAW OFFICE OF EUGENE LEE Eugene D. Lee (SB#: 236812) 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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

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v. COUNTY OF KERN, et al., Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Date: October 6, 2008 Time: 10:00 a.m. Courtroom: U.S. District Court, Ctrm. 3 2500 Tulare St., Fresno, CA Complaint Filed: January 6, 2007 Trial Date: December 2, 2008

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PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

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Plaintiff respectfully submits his reply to Defendants’ Opposition (“Opposition”) to Plaintiff’s

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Motion for Leave to File Second Amended Complaint (“SAC”).

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I.

Defendants’ Non-Objection to Dismissal of Claims/Defendants

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Defendants state in the Opposition:

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Defendants do not object to the dismissal of the individual defendants and do not object to elimination of the two claims (Doc. 225, 2:7-8).

6 If Defendants have no objections, this begs the question why Defendants refused to stipulate with 7 Plaintiff as to these dismissals, thus forcing this unnecessary motion litigation and wasting the time of 8 all concerned. In fact, on September 2, 2008, Plaintiff had sent Defendants a draft stipulation that would 9 have adequately addressed the dismissals. Defendants, in characteristic fashion, refused to sign it. Then, 10 at the telephonic hearing before the Court held on September 17, 2008, Defendants used Plaintiff’s 11 requested dismissals as an excuse to request yet another continuance, arguing that the uncertainty of 12 whether the dismissals would be granted made their task of preparing a motion for summary judgment 13 impossible. This tactic is disingenuous and abusive and should be sanctioned by this Court. 14 II.

Defendants’ Complaints about “At Least Two New Theories”

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The proposed amended complaint adds at least two new theories of recovery against the County: a claim under the Family Medical Leave Act (29 U.S.C. section 2615) for retaliation and a claim under the Fair Employment and Housing Act (California Government Code section l2940(h)) for retaliation. (Doc. 225, 1:28 - 2:3).

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Defendants are being disingenuous; Plaintiff only proposes to add a single claim for oppositional

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retaliation.

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As the Court may recall, Defendants had previously misconstrued Plaintiff’s proposed addition

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of a paragraph regarding loss of “professional fees” as representing a new theory of economic damages

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with regard to which Defendants had not previously been placed on notice. At the telephonic hearing

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before the Court held on September 17, 2008, Defendants argued that this allegedly new claim justified

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re-opening all of discovery. However, as Defendants well knew, Plaintiff had placed Defendants on

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notice of his claims for lost professional fees as early as January 6, 2007, with the filing of the very first

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complaint that initiated this action (Doc. 2), and repeatedly thereafter with the filing of each and every

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supplemental complaint. Defendants’ specious attempts to argue prejudicial surprise is further evidence

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of the lengths to which Defendants will go in order to delay and drag out this action. As for Plaintiff’s new claim for oppositional retaliation, Plaintiff first became aware of the facts

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giving rise to this claim on August 25, 2008, during Plaintiff’s deposition of Ray Watson, Chair of the

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Kern County Board of Supervisors. Mr. Watson testified that Defendant Kern County decided not to

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renew Plaintiff’s employment contract because Plaintiff had filed the instant action. Mr. Watson’s

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testimony is direct, incontrovertible evidence of oppositional retaliation by Defendant County in

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violation of the Fair Employment and Housing Act (“FEHA”), the California Family Rights Act

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(“CFRA”) and the Federal Family & Medical Leave Act (“FMLA”).

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The legal elements of oppositional retaliation are straightforward. Regarding FEHA and CFRA

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oppositional retaliation, subsection (h) of FEHA (Cal. Gov. C. 12940(h)) states in relevant part:

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It shall be an unlawful employment practice [. . .] For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

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Regarding FMLA, 29 U.S.C. § 2615(b) states in relevant part:

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(b) Interference with proceedings or inquiries. It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual-(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this title [29 USCS §§ 2611 et seq.];

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Plaintiff’s proposed allegations contained in the proposed Second Amended Complaint are

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equally straightforward: 173. At all material times herein, Sections 12949(f), 12945.2(a)(1) of the Government Code and 2 C.C.R. § 7297.7(a) prohibit any person from discriminating, discharging, or retaliating against an employee for exercising his right to medical leave and/or for opposing employment practices made unlawful under CFRA.

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174. Defendants, and each of them, retaliated against Plaintiff for requesting and taking medical leave, including denying him a medically necessary reduced work schedule; ,demoting him; excessively reducing his salary and chance to earn professional fees, bonuses and promotion; and non-renewal of his employment contract.

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175. Plaintiff’s exercise of his right to medical leave and/or opposition to employment practices made unlawful under CFRA was a motivating reason for Defendants’ adverse treatment Plaintiff.

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(Doc. 217, 51:4-14).

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216. Plaintiff opposed employment practices made unlawful by FMLA by filing this lawsuit, which included claims brought under the FEHA.

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217. Defendants, and each of them, discriminated against Plaintiff because he filed this lawsuit herein, which included claims brought under the FMLA. 218. Defendants, and each of them, engaged in discriminatory conduct that, taken separately and/or as a whole, materially and adversely affected the terms and conditions of Plaintiff’s employment, including deciding not to renew Plaintiff’s employment contract.

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219. Plaintiff’s filing of this lawsuit herein, which included claims brought under FMLA, was a negative factor in Defendants’ adverse treatment of Plaintiff.

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(Doc. 217, 57:12-20).

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222. Plaintiff opposed employment practices made unlawful by the FEHA by filing a charge with the DFEH and filing this lawsuit, which included claims brought under the FEHA.

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223. Defendants, and each of them, engaged in discriminatory conduct that, taken separately and/or as a whole, materially and adversely affected the terms and conditions of Plaintiff’s employment, including excessively reducing Plaintiff’s salary and chance to earn professional fees, bonuses and promotion, close scrutiny, and not renewing Plaintiff’s employment contract.

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224. Plaintiff’s opposition to employment practices made unlawful by the FHEA was a motivating reason for Defendants’ adverse treatment of Plaintiff.

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(Doc. 217, 57:28.5 – 58:8).

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Plaintiff challenges Defendants to demonstrate the prejudice created by Plaintiff’s new claim for

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oppositional retaliation since all of the evidence regarding oppositional retaliation is in the custody of

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Defendants, not Plaintiff. For instance, Defendants are better positioned than Plaintiff to know the

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chronology of events regarding their own decisions to place Plaintiff on administrative leave and not to

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renew his employment contract. They are also better positioned than Plaintiff to know how and when

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they became aware of Plaintiff’s filing of this action and formal complaints with the California

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Department of Fair Employment & Housing. Regarding Mr. Watson’s testimony, Defendants can obtain

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clarification from him whenever and however they wish without even having to go through the formality

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and expense of a deposition.

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In contrast, Plaintiff has absolutely no percipient knowledge regarding the facts underlying his

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oppositional retaliation claim beyond the dates that he filed and served the complaints in this action and

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the DFEH complaints, all of which are already known to Defendants. This is in part because, from the

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time Defendants placed Plaintiff on administrative leave on October 7, 2006, until the time his contract

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expired and was not renewed on October 4, 2007, Plaintiff was physically barred from entering the

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KMC hospital campus and prohibited from communicating with anyone at the KMC. Moreover,

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Defendants chose not to include Plaintiff in any part of their decisionmaking process to place him on

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administrative leave or not to renew his contract. As for Plaintiff’s damages for oppositional retaliation,

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they relate only to the administrative leave and non-renewal of his contract, both of which have already

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been exhaustively detailed in the Rule 26 reports and subsequent depositions of Plaintiff’s forensic

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economist and forensic psychologist.

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If Defendants do not agree with any of the above, Plaintiff demands to know what specific

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additional discovery Defendants intends to propose. If they are unable to state what that is, then

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Defendants should be sanctioned for their baseless opposition to this motion.

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As for Defendant’s request for time to bring both Rule 12 motions and a motion for summary

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judgment, that is procedurally redundant and wasteful. With discovery complete and Defendants

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announcing their intention to file a motion for summary judgment, Rule 12 motions have no place in this

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action. Defendants’ request for time to file both a motion for summary judgment and Rule 12 motions is

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unreasonable and further evidence of their bad faith attempts to delay and drag out this action at all

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costs.

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III.

Defendants’ Claims of Prejudicial Delay

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Defendants state in the Opposition:

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For these reasons, Defendants believe the proposed amendment is simply too late. Retooling the case two months before trial without reopening Defendants' right to scrutinize and challenge Plaintiff s new claims is prejudicial. (Doc. 225, 2:17-19).

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Discovery closed on August 17, 2008. Depositions continued until September 9, 2008. Discovery

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having been completed in this action and Plaintiff having the benefit of new information that sheds new

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light on new and existing claims, Plaintiff now seeks to amend his complaint. Amendments to pleadings

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after the close of discovery are not only commonplace, one would think they are to be desired as they

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evidence a party’s good faith adherence to Rule 11’s mandate to revise and subtract claims once new

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information is made known to that party.

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Nor has Plaintiff been in any way dilatory in bringing this motion to amend. The first

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opportunity Plaintiff had to learn of the new facts giving rise to his new claim for oppositional

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retaliation occurred on August 25, 2008, just one week before Plaintiff filed this motion to amend on

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September 2. On that day, Plaintiff was finally permitted to depose Ray Watson, Chair of the Board of

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Supervisors for the County of Kern, and hear testimony giving rise to the new claim. Despite the fact

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that Plaintiff was mired in a grueling Court-ordered schedule of daily back-to-back depositions spanning

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4 straight weeks, Plaintiff nevertheless was able to concurrently file the instant motion to amend on

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September 2. Plaintiff could not have filed this motion with any greater alacrity.

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IV.

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Conclusion Defendants should have stipulated to the proposed amended complaint and spared the Court this

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exercise in futility. Their frivolous Opposition and request for yet another continuance are but the latest

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examples of Defendants’ obstructionist delay tactics as they pursue their scorched earth litigation

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strategy. Defendants should be sanctioned for their conduct.

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It is ironic that Defendants complain of the prejudicial delay allegedly occasioned by Plaintiff’s

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late discovery of facts giving rise to a new claim for oppositional retaliation. Plaintiff’s discovery of

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such facts was late because of his own prejudicial delays resulting from: 1) an 8-month delay in

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production of critical documents resulting from this Court’s delayed issuance of a discovery ruling that

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took 5 months to render, 2) Defendants’ obstructionist refusal to produce a single one of 17 deponents

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that Plaintiff had reasonably noticed for deposition, requiring time-consuming motion litigation, and 3)

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Defendants’ obstruction of Plaintiff’s depositions in the form of improper speaking objections and

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instructions not to answer, causing the Court to order 6 out of the first 10 depositions to be reconvened.

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Justice delayed is justice denied. Plaintiff bears the burden of proof to demonstrate his claims;

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but with the passage of time, witness recollections fade, as repeatedly attested to by several deponents,

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and documents are spoliated, as Plaintiff intends to show this Court at the appropriate time. Lives have

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been placed on hold by this litigation and people need to get on with their business. This Court has

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granted Defendants a total of 5 months of continuances and counting and has yet to refuse them a single

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request for continuance. As a matter of basic fairness, Plaintiff submits that this Court should deny

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Defendants’ request for yet another continuance and let this action proceed once and for all to trial.

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For the foregoing reasons, Plaintiff DAVID F. JADWIN, D.O., respectfully requests that this

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Court grant him leave to file the Second Amended Complaint and deny Defendants their request for

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continuance.

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RESPECTFULLY SUBMITTED on September 29, 2008.

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/s/ Eugene D. Lee LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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