46 Mts - Reply - Declaration Leee
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Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5 6 7 8 9 10
Document 46
Filed 08/06/2007
Page 1 of 7
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 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.,
Civil Action No. 1:07-cv-00026-OWW-TAG
15 Plaintiff,
16 17
v.
18 19 20 21 22 23 24
DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE Date: August 13, 2007
COUNTY OF KERN; et al. Defendants.
Time: 9:30 a.m. Place: U.S. Bankruptcy Court Bakersfield Courtroom 8
Date Action Filed: Date Set for Trial:
January 6, 2007 August , 2008
25 26 27 28 DECLARATION OF EUGENE D. LEE IN SUPPORT OF π’S REPLY TO OPPOSITION TO MOTION TO STRIKE
1
Case 1:07-cv-00026-OWW-TAG
1 2
Document 46
Filed 08/06/2007
Page 2 of 7
DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSE
3
I, the undersigned, declare and say, as follows:
4
1.
I am an attorney at law duly licensed to practice before the Federal and State Courts of
5
California and admitted to practice before the United States District Court for the Eastern District of
6
California. I am the attorney representing Plaintiff David F. Jadwin in this matter.
7
2.
I am making this declaration in support of Plaintiff Dr. Jadwin’s Reply to the Opposition
8
to the Motion to Strike the Fifth Affirmative Defense of the Defendants. The facts stated herein are
9
personally known to me and if called as a witness, I could and would competently testify to the truth of
10
the facts set forth in this declaration.
11
3.
On May 4, 2007, I sent an email to Mark Wasser, attorney of record for all Defendants in
12
this action, as part of Plaintiff’s attempt to meet and confer in good faith on the legal insufficiency of
13
certain of Defendants’ affirmative defenses, in which I asked Mr. Wasser to clarify the legal basis for
14
Defendants’ Fifth Affirmative Defense. A true and correct copy of that email is attached hereto as
15
Exhibit 1 and incorporated by reference herein.
16
4.
On May 9, 2007, I received an email from Mr. Wasser in which he asserted that “…The
17
legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing
18
factor to the injuries for which he is seeking general damages….” A true and correct copy of that email
19
is attached hereto as Exhibit 2, and incorporated by reference herein.
20 21 22
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
23 24
Executed on August 6, 2007, at Los Angeles, California.
25 26 27
________________________________________ Eugene D. Lee
28 DECLARATION OF EUGENE D. LEE IN SUPPORT OF π’S REPLY TO OPPOSITION TO MOTION TO STRIKE
2
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 3 of 7
1 2
EXHIBITS TO DECLARATION OF EUGENE D. LEE
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
EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 5/4/07 EXHIBIT 2. Reply email from Defendants’ attorney to Plaintiff’s attorney, dated 5/9/07
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 4 of 7
EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 5/04/07
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Filed 08/06/2007
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From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, May 04, 2007 5:39 PM To: [email protected] Cc: [email protected] Subject: Jadwin/Kern: Additional Issues re: Answer Mark, It was a pleasure speaking with you just now. Like you, Joan and I thought that the call was very productive and helpful. Since we have agreed to stipulate to Defendants’ filing an Amended Answer (and to Plaintiff filing a Second Supplemental Complaint), I would like to raise a couple of additional points regarding the Answer for your consideration. First, we are unclear as to what the legal basis is for the fifth affirmative defense (Plaintiff was arrogant…). If there is no sufficient legal basis for that defense, please consider removing it. Second, the ninth affirmative defense, qualified immunity, needs to be pled with particularity. See
Shechter v. Comptroller of City of New York (2nd Cir. 1996) 79 F3d 265, 270. Please consider revising the answer to plead this defense with particularity. If you have questions, please contact me. Otherwise, I wish you a good weekend. Sincerely, Gene Lee
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 6 of 7
EXHIBIT 2. Reply email from Defendants’ attorney to Plaintiff’s attorney, dated 5/09/07
Case 1:07-cv-00026-OWW-TAG
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Filed 08/06/2007
Page 7 of 7
From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, May 09, 2007 3:17 PM To: [email protected] Subject: RE: Jadwin/Kern: Additional Issues re: Answer Gene, I have revised our qualified immunity affirmative defense and the revised language will be our answer to your Second Amended Complaint, after you file it. I think my new language should be particular enough but, if you disagree, we can discuss it further. The legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing factor to the injuries for which he is seeking general damages. Comparative fault is accepted. We can discuss this, too, if you want. Mark
1 2 3 4 5 6 7 8 9 10
Document 46
Filed 08/06/2007
Page 1 of 7
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 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.,
Civil Action No. 1:07-cv-00026-OWW-TAG
15 Plaintiff,
16 17
v.
18 19 20 21 22 23 24
DECLARATION OF EUGENE LEE IN SUPPORT OF PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE Date: August 13, 2007
COUNTY OF KERN; et al. Defendants.
Time: 9:30 a.m. Place: U.S. Bankruptcy Court Bakersfield Courtroom 8
Date Action Filed: Date Set for Trial:
January 6, 2007 August , 2008
25 26 27 28 DECLARATION OF EUGENE D. LEE IN SUPPORT OF π’S REPLY TO OPPOSITION TO MOTION TO STRIKE
1
Case 1:07-cv-00026-OWW-TAG
1 2
Document 46
Filed 08/06/2007
Page 2 of 7
DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSE
3
I, the undersigned, declare and say, as follows:
4
1.
I am an attorney at law duly licensed to practice before the Federal and State Courts of
5
California and admitted to practice before the United States District Court for the Eastern District of
6
California. I am the attorney representing Plaintiff David F. Jadwin in this matter.
7
2.
I am making this declaration in support of Plaintiff Dr. Jadwin’s Reply to the Opposition
8
to the Motion to Strike the Fifth Affirmative Defense of the Defendants. The facts stated herein are
9
personally known to me and if called as a witness, I could and would competently testify to the truth of
10
the facts set forth in this declaration.
11
3.
On May 4, 2007, I sent an email to Mark Wasser, attorney of record for all Defendants in
12
this action, as part of Plaintiff’s attempt to meet and confer in good faith on the legal insufficiency of
13
certain of Defendants’ affirmative defenses, in which I asked Mr. Wasser to clarify the legal basis for
14
Defendants’ Fifth Affirmative Defense. A true and correct copy of that email is attached hereto as
15
Exhibit 1 and incorporated by reference herein.
16
4.
On May 9, 2007, I received an email from Mr. Wasser in which he asserted that “…The
17
legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing
18
factor to the injuries for which he is seeking general damages….” A true and correct copy of that email
19
is attached hereto as Exhibit 2, and incorporated by reference herein.
20 21 22
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
23 24
Executed on August 6, 2007, at Los Angeles, California.
25 26 27
________________________________________ Eugene D. Lee
28 DECLARATION OF EUGENE D. LEE IN SUPPORT OF π’S REPLY TO OPPOSITION TO MOTION TO STRIKE
2
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 3 of 7
1 2
EXHIBITS TO DECLARATION OF EUGENE D. LEE
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
EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 5/4/07 EXHIBIT 2. Reply email from Defendants’ attorney to Plaintiff’s attorney, dated 5/9/07
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 4 of 7
EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’ attorney, dated 5/04/07
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 5 of 7
From: Eugene D. Lee [mailto:[email protected]] Sent: Friday, May 04, 2007 5:39 PM To: [email protected] Cc: [email protected] Subject: Jadwin/Kern: Additional Issues re: Answer Mark, It was a pleasure speaking with you just now. Like you, Joan and I thought that the call was very productive and helpful. Since we have agreed to stipulate to Defendants’ filing an Amended Answer (and to Plaintiff filing a Second Supplemental Complaint), I would like to raise a couple of additional points regarding the Answer for your consideration. First, we are unclear as to what the legal basis is for the fifth affirmative defense (Plaintiff was arrogant…). If there is no sufficient legal basis for that defense, please consider removing it. Second, the ninth affirmative defense, qualified immunity, needs to be pled with particularity. See
Shechter v. Comptroller of City of New York (2nd Cir. 1996) 79 F3d 265, 270. Please consider revising the answer to plead this defense with particularity. If you have questions, please contact me. Otherwise, I wish you a good weekend. Sincerely, Gene Lee
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 6 of 7
EXHIBIT 2. Reply email from Defendants’ attorney to Plaintiff’s attorney, dated 5/09/07
Case 1:07-cv-00026-OWW-TAG
Document 46
Filed 08/06/2007
Page 7 of 7
From: Mark Wasser [mailto:[email protected]] Sent: Wednesday, May 09, 2007 3:17 PM To: [email protected] Subject: RE: Jadwin/Kern: Additional Issues re: Answer Gene, I have revised our qualified immunity affirmative defense and the revised language will be our answer to your Second Amended Complaint, after you file it. I think my new language should be particular enough but, if you disagree, we can discuss it further. The legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing factor to the injuries for which he is seeking general damages. Comparative fault is accepted. We can discuss this, too, if you want. Mark
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