37 Mts - Mpa

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

1 2 3 4 5 6 7 8

Document 37

Filed 07/11/2007

Page 1 of 14

Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

9 10

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

11

UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13 14

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

15 16 17 18

v. COUNTY OF KERN; et al. Defendants.

Case No. 1:07-cv-00026-OWW-TAG PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE DEFENDANTS’ FIFTH AFFIRMATIVE DEFENSE AND FOR SANCTIONS AGAINST COUNSEL [F.R.C.P. RULES 12(f) AND 11(c)] Date: August 13, 2007 Time: 9:30 a.m. Place: U.S. Bankruptcy Courtroom, Bakersfield Courtroom 8

19 20 21

Date Action Filed: Date Set for Trial:

22

January 6, 2007 August 26, 2008

23 24

Plaintiff David F. Jadwin, D.O. hereby moves to strike portions of the Answer to the Second

25

Supplemental Complaint (“Answer”), namely the Fifth Affirmative Defense for Contributory

26

Negligence (“FAD”), on the grounds that it is “an insufficient defense” and a “scandalous matter” under

27

Rule 12(f). [Answer at ¶105; page 12, lines 18-22].

28 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

i

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

Document 37

Filed 07/11/2007

Page 2 of 14

1

TABLE OF CONTENTS

2

TABLE OF AUTHORITIES ................................................................................................................... 3 I. BACKGROUND ............................................................................................................................... 1 II. LEGAL ARGUMENT...................................................................................................................... 2 A. THE FIFTH AFFIRMATIVE DEFENSE IS “INSUFFICIENT” AS A MATTER OF LAW....... 2 1. Even If True, the Fifth Affirmative Defense Will Not Defeat Plaintiff’s Claims......................... 2 2. Even If the Fifth Affirmative Defense Alleges Contributory Negligence, It Is Insufficient Because None of Plaintiff’s Claims Are Based on Negligence........................................................... 3 B. THE FIFTH AFFIRMATIVE DEFENSE IS “SCANDALOUS” .................................................. 7 C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE................. 8 1. Plaintiff Is Not Required to Show Prejudice under Rule 12(f) ................................................... 8 2. Nevertheless, the Fifth Affirmative Defense Will Prejudice Plaintiff ......................................... 9 D. RULE 11 SANCTIONS AGAINST DEFENDANTS’ COUNSEL ARE WARRANTED............ 9 III. CONCLUSION ........................................................................................................................... 10

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

ii

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

Document 37

Filed 07/11/2007

Page 3 of 14

1

TABLE OF AUTHORITIES

2

CASES Atlantic Richfield Co. v. Ramirez................................................................................................................ 8 Batchelder v. America West Airlines (9th Cir. Ariz 2001) 259 F.3d 1112 .................................................. 5 California v. United States (N.D.Cal. 1981) 512 F.Supp. 36 ..................................................................... 2 Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384............................................................................. 9 Daniels v. Williams, 474 U.S. 327 (U.S. 1986) .......................................................................................... 6 Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255........................................................ 4 Godfrey v. Steinpress (1982) 128 Cal.App.3d 154 ..................................................................................... 6 Golden Eagle Distributing Corp. v. Burroughs Corp................................................................................. 9 Graefenhain v. Pabst Brewing Co., 827 F.2d 13 (7th Cir. 1987) ............................................................... 7 Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997............................................... 7 Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359 .................................................................... 10 Kaylor v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988 ............................................ 5 King v. Preferred Technical Group (7th Cir. 1999) 166 F.3d 887 ............................................................. 5 Local 246 Util. Workers Union v. Southern Cal. Edison Co., 83 F.3d 292 (9th Cir. 1996)................... 6, 7 Marcano-Rivera v. Pueblo International, Inc. (1st Cir. 2000) 232 F.3d 245......................................... 5, 6 Mixon v. Fair Employment & Housing Commission ((1987) 192 Cal.App.3d 1306, 1317) ...................... 5 Mora v. Chem-Tronics, Inc. 16 F.Supp.2d 1192 (S.D. Cal. 1998) ............................................................. 5 Pang v. Beverly Hosp., Inc., 79 Cal. App. 4th 986 (2000) ......................................................................... 5 Patten v. Grant Joint Union High School Dist. (App. 3 Dist. 2005) 134 Cal.App.4th 1378 ..................... 4 Reeves v. Sanderson Plumbing (2000) 530 U.S. 133 ................................................................................. 7 SEC v. Gulf & Western Industries, Inc. (D. D.C. 1980) 502 F.Supp. 343.................................................. 9 Siegal v. Alpha Wire Corp. (3d Cir. 1990) 894 F.2d 50 ............................................................................. 7 Skadegaard v. Farrell (D. N.J. 1984) 578 F.Supp. 1209............................................................................ 7 Talbot v. Robert Matthews Distributing Co. (7th Cir. 1992) 961 F.2d 654................................................. 7 Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1 .............................................................................. 6

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

STATUTES 2 CCR § 7297.10........................................................................................................................................ 5 2 CCR § 7297.7(a) ...................................................................................................................................... 4 260............................................................................................................................................................... 6 29 U.S.C. § 207(a)(1).................................................................................................................................. 6 29 U.S.C. §§ 216(b) .................................................................................................................................... 6 29 U.S.C. §§ 2601, et seq............................................................................................................................ 1 29 U.S.C. §201 et seq.................................................................................................................................. 1 42 U.S.C. § 1983..................................................................................................................................... 1, 6 Cal. Civil Code §§ 45- 47 ....................................................................................................................... 1, 6 Cal. Gov’t Code § 12940(n)........................................................................................................................ 6 Cal. Gov’t. C. § 12940(a)............................................................................................................................ 5 Cal. Gov’t. Code § 12940(a)....................................................................................................................... 1 Cal. Gov’t. Code §§ 12945.1, et seq ....................................................................................................... 1, 4 Cal. Gov't Code § 12940(m) ................................................................................................................... 1, 5 Cal. Health & Safety Code § 1278.5....................................................................................................... 1, 3 Cal. Health & Safety Code 1278.5(b)(1) .................................................................................................... 4 Cal. Heath & Safety Code § 1278.5(d) ....................................................................................................... 4 Cal. Labor Code § 1102.5 ....................................................................................................................... 1, 4 Gov't Code § 12940(n)................................................................................................................................ 1 TREATISES 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts § 471....................................................................... 6

28 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

iii

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

Document 37

1 2 3 4 5 6 7 8 9

Filed 07/11/2007

Page 4 of 14

I. BACKGROUND On January 9, 2007, Plaintiff David F. Jadwin, D.O. filed the Complaint against the Defendants alleging the following claims for relief: 1. 2. 3. 4. 5. 6.

Retaliation [Cal. Health & Safety Code § 1278.5]; Retaliation [Cal. Labor Code § 1102.5]; Retaliation [Cal. Family Rights Act (“CFRA”), Cal. Gov’t. Code §§ 12945.1, et seq.]; Interference [Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.]; Violation of CFRA rights [Cal. Gov’t. Code §§ 12945.1, et seq.]; Disability Discrimination [California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t. Code § 12940(a).]; 7. Failure to provide reasonable accommodation [FEHA, Cal. Gov't Code § 12940(m)]; 8. Failure to engage in an interactive process [FEHA, Cal. Gov't Code § 12940(n)]; 9. Defamation [Cal. Civil Code §§ 45- 47]; 10. Violation of 14th Amend. procedural due process [42 U.S.C. § 1983]; and 11. Violation of the Fair Labor Standards Act (“FLSA”) [29 U.S.C. §201 et seq.]

10 On April 24, 2007, Plaintiff filed the First Supplemental Complaint re-alleging the same claims. 11 On April 30, Defendants filed their answer to Plaintiff’s First Supplemental Complaint, alleging 12 the Fifth Affirmative Defense (“FAD”). The FAD stated as follows: 13

16

As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained. Answer at ¶ 105; Page 12, lines 18-22.

17

On May 11, 2007, Plaintiff’s attorneys sent a letter to Mark Wasser, attorney of record for all

14 15

18

Defendants in this action (“Mr. Wasser”), both by facsimile and US mail. The letter represented

19

Plaintiff’s attempt to meet and confer at length and in good faith on the legal insufficiency of certain of

20

Defendants’ affirmative defenses, including the FAD.

21 22 23 24 25 26 27 28

On May 16, Mr. Wasser and Plaintiff’s attorneys met and conferred by phone. Mr. Wasser specifically stated that he “appreciated” Plaintiff’s legal brief of May 11, “educating” him. On May 17, Mr. Wasser sent a letter to Plaintiff’s attorneys by facsimile and US mail responding to their letter of May 11. Later that day, Plaintiff’s attorneys sent a letter to Mr. Wasser by facsimile and US mail further meeting and conferring with him. On June 13, Plaintiff filed the Second Supplemental Complaint (“Complaint”) re-alleging the same claims as in the original complaint. POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

1

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

1 2 3 4 5

Document 37

Filed 07/11/2007

Page 5 of 14

On June 21, 2007, Defendants filed the Answer to the Second Supplemental Complaint (“Answer”), re-alleging the FAD. On June 26, Plaintiff’s attorneys sent another letter to Mr. Wasser by facsimile and US mail further meeting and conferring with him in light of the Answer. On July 3, Mr. Wasser sent a letter to Plaintiff’s attorneys by facsimile and US mail responding

6

to their letter of June 26. Later that day, Plaintiff’s attorneys sent an email to Mr. Wasser further meeting

7

and conferring with him.

8

On July 4, Mr. Wasser sent an email to Plaintiff’s attorneys replying to their email of July 3.

9

On July 5, Plaintiff’s attorneys sent an email to Mr. Wasser further meeting and conferring with

10 11 12 13

him. Later that day, Mr. Wasser sent a reply email to Plaintiff’s attorneys. On July 6, Plaintiff’s attorneys sent an email to Mr. Wasser further meeting and conferring with him. Later that day, Mr. Wasser sent a reply email. Plaintiff has attempted to meet and confer at length and in good faith regarding the legal

14

insufficiency and scandalous nature of the Fifth Affirmative Defense under FRCP 12(f). However,

15

Defendants refuse to withdraw the FAD. Plaintiff therefore brings this motion to strike.

16 II. LEGAL ARGUMENT 17 Rule 12(f) of the FRCP provides: 18 19 20

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. F.R.C.P. 12(f).

21 Plaintiff moves to strike the FAD on the grounds that it is “an insufficient defense” and a 22 “scandalous matter” under Rule 12(f). 23 24

A. THE FIFTH AFFIRMATIVE DEFENSE IS “INSUFFICIENT” AS A MATTER OF LAW.

25 1. Even If True, the Fifth Affirmative Defense Will Not Defeat Plaintiff’s Claims 26 A motion to strike is appropriate when an affirmative defense is insufficient as a matter of law. 27 California v. United States (N.D.Cal. 1981) 512 F.Supp. 36, 38. 28 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

2

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

1

Document 37

Filed 07/11/2007

Page 6 of 14

The role of an affirmative defense under Rule 8(c) is to set forth additional matters beyond the

2

four corners of the complaint that constitute an “avoidance” to a well-pled claim. Black’s Law

3

Dictionary defines an affirmative defense as: “A defendant’s assertion raising new facts and arguments

4

that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint are

5

true.” Black’s Law Dict. (7th ed. 1999) p. 430, col. 1-2, italics added.

6

The FAD fails to allege any cognizable affirmative defense; it contains only loosely generalized

7

indictments on Plaintiff’s character and behavior, accusing him of being “arrogant, disagreeable,

8

uncooperative, intimidating, overbearing, self-righteous and unfriendly.” Nor were Defendants able to

9

articulate any cognizable affirmative defense during meet and confer discussions with Plaintiff despite

10

Plaintiff’s repeated requests. Mr. Wasser’s email of July 6, 2007 contains only a vague statement that

11

the behavior alleged in the FAD somehow “contributed to the problems [Plaintiff] alleges”. Lee Decl. ¶

12

15. However, when asked to clarify whether the FAD was effectively alleging “contributory negligence”

13

or, if not, what exact legal theory the FAD was alleging, Mr. Wasser obfuscates matters further by

14

stating: “We do not contend that [Plaintiff’s] behavior bars his claims in the way common law

15

contributory negligence barred a claim. We only contend his behavior contributed to the problems he

16

alleged.” Lee Decl. ¶ 15, italics added.

17

In short, over the course of numerous meet and confer efforts, Defendants have yet to articulate

18

the legal relevance of the FAD and have in fact acknowledged that the FAD, if true, will not defeat any

19

of Plaintiff’s claims. The FAD fails to allege a cognizable affirmative defense and should be stricken as

20

“insufficient”.

21 22

2. Even If the Fifth Affirmative Defense Alleges Contributory Negligence, It Is Insufficient Because None of Plaintiff’s Claims Are Based on Negligence

23

Even if the FAD had validly alleged the affirmative defense of contributory negligence, it would

24

still have been legally insufficient because none of Plaintiff’s claims allege or require a showing of

25

negligence. Rather, they are all either non-negligence based statutory claims or intentional torts. Since

26

Plaintiff does not allege negligence, contributory negligence is completely inapposite.

27 28

Plaintiff’s First Cause of Action for health facility whistleblowing retaliation [Cal. Health & Safety C. § 1278.5], Second Cause of Action for employee whistleblowing retaliation [Cal. Lab. C. § POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

3

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

Document 37

Filed 07/11/2007

Page 7 of 14

1

1102.5], Third Cause of Action for CFRA leave retaliation [Cal. Gov’t. C. §§ 12945.1, et seq.; and 2

2

CCR § 7297.7(a)] do not rest on negligence, but instead require that Plaintiff show a nexus between the

3

protected activity and the adverse employment action(s) that Defendant took against Plaintiff.1 [Id.; Cal.

4

Health & Safety Code 1278.5(b)(1) (“No health facility shall discriminate or retaliate in any manner

5

against a patient or employee of the health facility because that patient, employee, or any other person,

6

has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding

7

of any governmental entity relating to the care, services, or conditions of that facility.”); Patten v. Grant

8

Joint Union High School Dist. (App. 3 Dist. 2005) 37 Cal.Rptr.3d 113, 117, 134 Cal.App.4th 1378 (“…a

9

plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse

10

employment action, and (3) there is a causal link between the two.”); Dudley v. Department of

11

Transportation (2001) 90 Cal.App.4th 255, 261 (“...we conclude the elements of a cause of action for

12

retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant

13

was an employer covered by the CFRA; (2) the plaintiff was an employee eligible to take CFRA leave;

14

(3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff

15

suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise

16

of her right to CFRA leave.”). The California Legislature has provided a rebuttable presumption of

17

retaliatory motive if the adverse employment action or threat of adverse action occurs within of 120 days

18

Plaintiff's protected activity. [Cal. Heath & Safety Code § 1278.5(d)]. Because retaliation must be a

19

motivating factor for Defendants' adverse employment actions against Plaintiff, retaliation claims do not

20

rest on a negligence theory.

21

Plaintiff’s Fourth and Fifth Causes of Action for FMLA and CFRA violations, respectively, rest

22

on strict liability. The District Court for Southern District of California has stated that “The FMLA is a

23

strict liability statute in the sense that an employee need not delve into the employer’s subjective intent

24

to recover for alleged violations for interference.” Mora v. Chem-Tronics, Inc. 16 F.Supp.2d 1192, 1219

25

1

26 27 28

Defendants’ many adverse actions include (i) denial of and interference with Plaintiff’s medical/recuperative leave, (ii) retaliatory and discriminatory ratification of a campaign of defamation by Defendant William Roy and other Defendants against Plaintiff, (iii) retaliatory and discriminatory demotion of Plaintiff from Chair of the Pathology Department at Kern Medical Center (“KMC”) without meaningful notice and a hearing, and (iv) retaliatory and discriminatory preemptive decision not to renew Plaintiff’s employment contract (which is not due to expire until October 4, 2007). See Complaint at ¶¶ 135-136.

POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

4

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

Document 37

Filed 07/11/2007

Page 8 of 14

1

(S.D. Cal. 1998); Batchelder v. America West Airlines (9th Cir. Ariz 2001) 259 F.3d 1112, 1130 ("An

2

employer who acts in good faith and without knowledge that its conduct violated the Act (FMLA),

3

therefore, is still liable for actual damages regardless of its intent.") . The Seventh Circuit Court of

4

Appeal has similarly found “If an employer interferes with the FMLA-created right to medical leave or

5

to reinstatement following the leave, a deprivation of this right is a violation regardless of the

6

employer’s intent.” King v. Preferred Technical Group (7th Cir. 1999) 166 F.3d 887, 891; see also,

7

Kaylor v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988, 997 (“Accordingly, by

8

establishing a ‘minimum standard’ for employee leave, Congress apparently intended for FMLA leave

9

protected by §2612(a)(1) to be strictly enforced with any question of an employer's intent to violate the

10

FMLA to be considered only when assessing damages.”).

11

Likewise, CFRA is the state counterpart to the FMLA and is interpreted in a similar manner. The

12

California Court of Appeal has referred to the FMLA as the “federal law counterpart” to CFRA. Pang v.

13

Beverly Hosp., Inc., 79 Cal. App. 4th 986, 993 (2000). In Mora v. Chem-Tronics, Inc., the U.S. District

14

Court for the Southern District of California noted that “the CFRA and FMLA statutory schemes are so

15

similar that cases addressing the FMLA are instructive in interpreting CFRA claims”. 16 F. Supp. 2d

16

1192, 1202 (S.D. Cal. 1998), quoting from Ely v. Wal-Mart, Inc., 875 F. Supp. 1422, 1425 n.6 (C.D.

17

Cal. 1995), see also 2 CCR § 7297.10 (CFRA incorporates the regulations interpreting FMLA to the

18

extent they are consistent).

19

Plaintiff’s Sixth Cause of Action for disability discrimination [Cal. Gov’t. C. § 12940(a)] does

20

not rest on negligence, but discriminatory intent. As the California Court of Appeal stated in Mixon v.

21

Fair Employment & Housing Commission “To prevail under the disparate treatment theory, an employee

22

must show that the employer harbored a discriminatory intent.” ((1987) 192 Cal.App.3d 1306, 1317).

23

Plaintiff’s closely-related Seventh and Eighth Causes of Action for “failure to provide reasonable

24

accommodation” and “failure to engage in an interactive consultation”, respectively, under the FEHA do

25

not rest on a negligence theory of liability. In fact, the Legislature imposed strict liability on employers

26

who know of an employee’s disability but fail to provide reasonable accommodation. See Cal. Gov’t

27

Code § 12940(m); Marcano-Rivera v. Pueblo International, Inc. (1st Cir. 2000) 232 F.3d 245, 256-257.

28

In Marcano-Rivera v. Pueblo Int'l, Inc., the First Circuit Court of Appeal stated: “Hence, an employer POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

5

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

Document 37

Filed 07/11/2007

Page 9 of 14

1

who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter

2

what its intent . . . .”. Id. at 257. Likewise, the Legislature imposed strict liability on employers who fail

3

to engage in good faith in an interactive consultation. See Cal. Gov’t Code § 12940(n).

4

Plaintiff’s Ninth Cause of Action alleges defamation. Defamation is an intentional tort. Cal. Civ.

5

Code §§ 45, 46; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts § 471, pp. 557-558. Contributory

6

negligence is not a defense to an intentional tort. Godfrey v. Steinpress (1982) 128 Cal.App.3d 154;

7

Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1.

8

Plaintiff’s Tenth Cause of Action for constitutional due process violation [42 USC § 1983] does

9

not rest on negligence, but affirmative intent. The U.S. Supreme Court specifically rejected a negligence

10

standard, holding:

11 12 13 14 15

In Parratt . . . we said that the loss of the prisoner's hobby kit, “even though negligently caused, amounted to a deprivation [under the Due Process Clause].” 451 U.S., at 536537. JUSTICE POWELL, concurring in the result, criticized the majority for “[passing] over” this important question of the state of mind required to constitute a “deprivation” of property. Id. at 547. He argued that negligent acts by state officials, though causing loss of property, are not actionable under the Due Process Clause . . . .Upon reflection, we agree and overrule Parratt to the extent that it states that mere lack of due care by a state official may “deprive” an individual of life, liberty, or property under the Fourteenth Amendment. Daniels v. Williams, 474 U.S. 327, 331 (U.S. 1986)

16 Finally, Plaintiff’s Eleventh Cause of Action for violation of FLSA imposes strict liability on 17 employers for non-payment of wages and disregards negligence. In Local 246 Util. Workers Union v. 18 Southern Cal. Edison Co., the employer and employees had entered into collective bargaining 19 agreements that miscalculated overtime rates by failing to include supplemental payments for disabled 20 employees in the regular base wage when calculating overtime. Despite the fact that the parties had 21 contractually agreed on the calculation, the Ninth Circuit Court of Appeal held that the method of 22 computation nevertheless violated 29 U.S.C. § 207(a)(1). 83 F.3d 292 (9th Cir. 1996) 23 In fact, non-negligence is to some extent an affirmative defense. The FLSA provides that an 24 employer may avoid liquidated damages (equal to the amount of actual damages) or reduce the total 25 damages award by proving that it acted in good faith and had reasonable grounds to believe its conduct 26 did not violate the FLSA. 29 U.S.C. §§ 216(b), 260. As the Ninth Circuit Court of Appeal noted in Local 27 246 Utility Workers Union of America v. Southern Calif. Edison Co., “Under 29 U.S.C. § 260, the 28 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

6

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

Document 37

Filed 07/11/2007

Page 10 of 14

1

employer has the burden of establishing subjective and objective good faith in its violation of the FLSA.

2

If the employer fails to carry that burden, liquidated damages are mandatory.” 83 F.3d 292, 297 (9th Cir.

3

1996).

4 5

Because none of Plaintiff’s claims rest on a negligence theory of recovery, the FAD is insufficient and should be stricken.

6 B. THE FIFTH AFFIRMATIVE DEFENSE IS “SCANDALOUS” 7 The Fifth Affirmative Defense should be also stricken as “scandalous” within the meaning of 8 Rule 12(f). Courts have defined the term “scandalous” as allegations that cast a “cruelly” derogatory 9 light on a party or other person. See Skadegaard v. Farrell (D. N.J. 1984) 578 F.Supp. 1209, 1221; 10

Talbot v. Robert Matthews Distributing Co. (7th Cir. 1992) 961 F.2d 654, 665 (allegations that milk

11 distributor intentionally caused outbreak of salmonella in order to consummate fraudulent scheme 12 against route drivers held subject to motion to strike as “scandalous”). 13 Defendants are attempting to manufacture a pretextual , ex post facto, reason for their numerous 14 unlawful acts against Plaintiff by suggesting Plaintiff’s character defects brought about the problems he 15 alleges upon him. 16 However, this pretext is shown to be "unworthy of credence" by Defendants’ own 17 contemporaneous admissions which conspicuously establish other unrelated reasons for Defendants’ 18 adverse actions against Plaintiff. [Reeves v. Sanderson Plumbing (2000) 530 U.S. 133, 148; Hersant v. 19 California Dept. of Social Services (1997) 57 Cal.App.4th 997,1004-1005; Siegal v. Alpha Wire Corp. 20 (3d Cir. 1990) 894 F.2d 50, 55 ("inconsistencies in performance evaluations prior and subsequent to an 21 employee's termination my support an inference of pretext"); Graefenhain v. Pabst Brewing Co., 827 22 F.2d 13 (7th Cir. 1987) (no contemporaneous evidence of poor performance shows pretext). For 23 example, in a letter dated April 17, 2006, from Defendant Peter Bryan, the then-chief executive officer 24 of KMC, to Plaintiff, Mr. Bryan admitted to Plaintiff during Plaintiff’s FMLA/CFRA reduced schedule 25 leave for depression that the Pathology Department continued to function well “as it had for many 26 years” and that Plaintiff had made many positive changes in the department. Complaint at ¶ 82. Then in 27 a letter just 11 days later, dated April 28, 2006, Mr. Bryan informed Plaintiff that he was converting Dr. 28 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

7

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

Document 37

Filed 07/11/2007

Page 11 of 14

1

Jadwin's reduced schedule leave for depression to full-time medical leave, and issued an ultimatum that

2

Plaintiff either return to work full-time or resign by June 17, 2006, explaining “the hospital needs you

3

here full-time.” Complaint at ¶ 86 (emphasis added). In an email dated June 14, 2006, three days before

4

the June 17 deadline, Mr. Bryan informed Plaintiff that he was preemptively demoting Plaintiff from

5

Chair of the Pathology Department because “This institution needs to have full-time leadership in the

6

department and because of your leave you have not been able to provide it.” Complaint at ¶ 90

7

(emphasis added). Mr. Bryan’s communications do not cite Plaintiff’s alleged character faults as the

8

reason for the adverse actions taken against him.

9

Defendants’ allegations in the FAD that “Plaintiff was arrogant, disagreeable, uncooperative,

10

intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed to and

11

was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he

12

sustained” amount to nothing more than a cruelly derogatory attack on Plaintiff's character and

13

competence that would constitute defamation in any other context. Physicians, particularly those like

14

Plaintiff who have risen to visible leadership positions at large institutions, depend upon their

15

professional reputations for their very careers and livelihoods and are particularly vulnerable to such

16

attacks. The risk is heightened where, as here, the pleadings could potentially attract media attention.

17

Because Defendants' allegations are shielded from liability by the litigation privilege, Plaintiff's only

18

remedy is to request the court to strike them as "scandalous".

19 20

Plaintiff respectfully requests that the court grant the sole legal remedy available to him by striking the FAD as scandalous.

21 C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE 22 1. Plaintiff Is Not Required to Show Prejudice under Rule 12(f) 23 Although there is a split of authority among the circuit courts of appeal, the Ninth Circuit has 24 expressly held that a party need not show prejudice in bringing a motion to strike. In Atlantic Richfield 25 Co. v. Ramirez, the Ninth Circuit stated: 26 27 28

We reject Ramirez’ contention that we should require the moving party to demonstrate prejudice in order to justify striking redundant material. Rule 12(f) says nothing about a showing of prejudice and allows a court to strike material sua sponte. We decline to add additional requirements to the Federal Rules of Civil Procedure when they are not POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

8

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

Document 37

Filed 07/11/2007

Page 12 of 14

supported by the text of the rule. See In re Glenfed, 42 F.3d at 1546 (“We are not permitted to add new requirements to Rule 9(b) simply because we like the effects of doing so.”). 1999 U.S. App. LEXIS 8669 (9th Cir. 1999)

1 2 3

2. Nevertheless, the Fifth Affirmative Defense Will Prejudice Plaintiff 4 Defenses that “significantly complicate” the litigation are “particularly vulnerable to a motion to 5 strike.” SEC v. Gulf & Western Industries, Inc. (D. D.C. 1980) 502 F.Supp. 343, 345 (defenses charging 6 SEC with improprieties in investigating claims against D was removed to avoid spending unnecessary 7 time and money litigating the invalid defense). 8 Defendants are clearly attempting to use the FAD to justify a prejudicially broad scope of 9 discovery that has the goal of smearing Plaintiff. Mr. Wasser has repeatedly suggested Plaintiff should 10 stand by and permit Defendants to conduct its fishing expedition: “If facts sufficient to support the 11 defenses have not been developed by the time of the pre-trial conference, the defendants will entertain 12 your request that they be stricken then.” Lee Decl. ¶ 9. Given the invalidity of the FAD, such an 13 extensive fishing expedition having the goal of smearing Plaintiff would not only “significantly 14 complicate the litigation”, burdening Plaintiff with unnecessary additional expense in terms of time and 15 money, but would also unduly harass and embarrass Plaintiff. This prejudice, if unchecked, would only 16 propagate throughout the litigation, ultimately promoting jury confusion. 17 18

D. RULE 11 SANCTIONS AGAINST DEFENDANTS’ COUNSEL ARE WARRANTED

19

Rule 11 permits the Court to sanction attorneys2 who falsely certify in pleadings that “the claims,

20

defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous

21

argument for the extension, modification, or reversal of existing law or the establishment of new law”. Rule 11 is intended to deter dilatory or abusive pretrial tactics and to streamline litigation by

22 23

excluding baseless filings. Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384. As the Ninth Circuit

24

held in Golden Eagle Distributing Corp. v. Burroughs Corp., “A lawyer should not be able to proceed

25

with impunity in real or feigned ignorance of authorities which render his argument meritless…Rule 11

26

is intended to reduce the burden on district courts by sanctioning, and hence deterring, attorneys who

27

2

28

(A) Note that Court may impose monetary sanctions against the attorney only: “Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2)”. FRCP 11(c)(2)(A).

POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

9

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

Document 37

Filed 07/11/2007

Page 13 of 14

1

submit motion or pleadings which cannot reasonably be supported in law or fact.”. (9th Cir. 1986) 801

2

F.2d 1531, 1542.

3

Prior to Defendants’ filing of the Answer, Plaintiff had already met and conferred at length with

4

Defendants by phone, email and letter, notifying them in no uncertain terms that the FAD was

5

“insufficient” and “scandalous”. Plaintiff’s efforts were to no avail. In filing the Answer, Defense

6

counsel certified that Defendants had legal and factual support for the FAD. Subsequently, Plaintiff

7

again met and conferred at length with Defendants, requesting that Defendants strike the FAD from the

8

Answer. To date, Defendants have refused. Lee Declaration ¶ 3.

9

Plaintiff requests the Court sanction Mr. Wasser and award Plaintiff attorney fees in the amount

10

of $4,500 in compensation of (a) 1 of the hours Mr. Eugene Lee and 1 of the hours Ms. Joan Herrington

11

spent meeting and conferring to avoid bringing this motion; and (b) 4 of the hours Mr. Lee and 4 of the

12

hours Ms. Herrington spent bringing this motion. Ms. Herrington’s and Mr. Lee’s regular rates for such

13

services are $500 and $400 per hour, respectively. Lee Decl. at ¶ 16; Herrington Decl. at ¶ 3.

14

Mr. Lee and Ms. Herrington attempted several times to secure local counsel to prosecute

15

Plaintiff’s suit but were ultimately unsuccessful. Lee Decl. at ¶¶ 18-20; Herrington Decl. at ¶ 6. Plaintiff

16

therefore requests this Court use the prevailing rate in Plaintiff's counsels’ respective counties (Mr. Lee

17

is in Los Angeles County, and Ms. Herrington is in Alameda County) rather than that of this forum to

18

determine their respective reasonable hourly rates. Horsford v. Board of Trustees (2005) 132

19

Cal.App.4th 359, 397; see Lee Decl. at ¶ 17; Herrington Decl. at ¶ 4. Plaintiff requests that this Court

20

take judicial notice of the fact that Plaintiff's counsels’ rates are also consistent with those set forth in the

21

adjusted Laffey Matrix used by the U.S. Department of Justice to determine the reasonable rate for

22

attorney fees in civil rights cases in the Baltimore/Washington area. See Herrington Decl. ¶ 7; Request

23

for Judicial Notice.

24 III. CONCLUSION 25 26

For the foregoing reasons, Plaintiff respectfully requests that the Court strike Defendants Fifth

27

Affirmative Defense pursuant to Rule 12(f), and grant Plaintiff sanctions against Defendants in the

28

amount of $ 4,500 pursuant to Rule 11(c). POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

10

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

1

Document 37

Filed 07/11/2007

Page 14 of 14

RESPECTFULLY SUBMITTED on July 11, 2007.

2 3 4 5 6 7 8 9 10 11

/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] /s/ Joan Herrington, SB# 178988 (as authorized on 6/4/07) BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AND FOR SANCTIONS

11