70 Request For Reconsideration - Opposition

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

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

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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 [email protected]

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9 Attornevs for Defendants Countv of Peter Bryan, irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragiand, Toni Smith

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

15 DAVID F. ,JADWIN, D.O.

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

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Plaintiff,

COUNTY OF KERN. et aI.,

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RECONSIDERATION

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\IS.

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) DEFENDANTS' OPPOSITION TO ) PLAINTIFF'S REQUEST FOR

Defendants.

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

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Defendants submit this memorandum in opposition to Plaintiffs request for

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reconsideration by the District Court of Magistrate Judge's ruling on Plaintiffs motion to strike

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fifth affirmative defense.

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III

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

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

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Document 70

Filed 10/31/2007

Page 2 of 4

PLAINTIFF MISSTATES THE CASE

Plaintiffs request for reconsideration misrepresents the record. For example, on page

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2:2-10 of PlaintifT s request for reconsideration, Plaintiff asserts that "the parties narrowed and

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resolved the [fifth affirmative defense] to a mutual understanding" that it was based on a theory

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of "comparative fault" This is not true, The parties did not "narrow" any issues and had no

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"understanding." One has only to read what the parties have written to realize how polarized

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their positions are,

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Defendants' m(,m'Jra,ndum

opposition to the motion to strike

clearly stated Defendants position, Defendants liberally quoted the allegations from PlaintilTs

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complaint regarding "hostile work environment". (Defendants' Memorandum of Points and

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Authorities

Opposition to

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opportunity to

rt"rn"pr

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allegations of hostile work environment Defendants specifically and expressly disclaimed any

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theory oFcontributory negligence," (Defendants' Memorandum of Points and Authorities in

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Opposition to Motion to Strike, p, 4:22-23,)

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

Defendants argued own

and introduce evidence

hNlm!lnr

should have an

as it rehites to

Plaintiff filed a reply memorandum in support of his motion to strike after Defendants

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filed their opposition memorandum, Thus, Plaintiff knew exactly what Defendants' position was

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and he not

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"understanding"

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further comment,

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II.

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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

THE PARTIES ARE JUST BEGINNING DISCOVERY

Plaintiff asserts that the fifth affirmative defense "fails to provide fair notice" of the

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defense, Not including this memorandum, there have been more than 70 pages wTitten to date

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about the fifth affirmative defense, It has been analyzed and discussed ad naseum. Plaintiff has

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full notice of what it is about Very simply, it puts Plaintiff on notice that his own behavior is at

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issue. It is not complicated.

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III

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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

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that Defendants be precluded from developing evidenee about it. However, Defendants are

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entitled to develop a defense by, among other things, showing how Plaintiffs behavior eroded

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the work environment at Kern Medieal Center.

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The Magistrate Judge reasonably gave Plaintiff an opportunity to renew his motion to

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strike if Defendants are unable to develop evidence to support the fifth affirmative defense,

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(Order denying Motion to Strike, p. 7:3-5.) Defendants had made Plaintiff the same offer during meet-and-confer f(n)Cf,SS

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There is no lack of notice regarding the meaning of thefit1.h affirmative defense.

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m.

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Plaintiff asserts

PLAINTIFF MISREPRESENTS THE MAGISTRATE'S ORDER the Magistrate Judge

raised the

defenses

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unclean hands,

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'hostile work environment causation.''' Plaintiff misstates the Magistrate Judge's Order.

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estoppel,

an erstwhile defense

can be loosely

as

On page 6 of her Order, the Magistrate Judge discussed the concepts of 'unclean hands"

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and "equitable estoppel" as examples of theories that subject a plaintiffs behavior to scrutiny.

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Nothing in the Order can be read as injecting new defenses into the ease and, to the cxtent

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Plaintiff suggests it does, Plaintiff is mistaken. Plaintiff knows his behavior is at issue and

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it will affect the relief that may

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

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explore it.

IV.

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CONCLUSION

The Magistrate Judge's Order thoughtfully and thoroughly analyzes the fit1.h affirmative

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defense. Her Order denied Plaintiff s motion to strike without prejudiee, thereby giving Plaintiff

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the opportunity to renew his motion ifthe Defendants are unable to develop faets to support the

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fifth affirmative defense. That holding is not only legally sound, it is fair.

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III

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III

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

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

Document 70

Filed 10/31/2007

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The request for reconsideration should be denied and the Magistrate Judge's Order 2 3

should stand. Respectfully submitted,

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Dated: October 3], 2007

LAW OFFICES OF MARK A. WASSER

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Mark A. Wasser Atlorrlev for Defendants.

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

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