81 Order Denying Mx For Reconsideration

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

Document 81

Filed 12/17/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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DAVID F. JADWIN, D.O.,

10 Plaintiff,

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vs.

13 COUNTY OF KERN, et al., 14 15 16 17

Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV-F-07-026 OWW/TAG ORDER DENYING PLAINTIFF'S REQUEST FOR RECONSIDERATION BY THE DISTRICT COURT OF MAGISTRATE JUDGE'S ORDER (Doc. 68)

Plaintiff has filed a request for reconsideration by the

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District Court of a Magistrate Judge’s order.

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that the “Order Denying Motion to Strike Fifth Affirmative

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Defense and Request for Sanctions” filed on October 23, 2007,

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(Doc. 64), is clearly erroneous or contrary to law.

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Plaintiff argues

Plaintiff, alleged to be a whistleblowing physician with

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disabilities, has filed a “Second Supplemental Complaint for

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Damages & Injunctive Relief” against his employer, the County of

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Kern, and officers and/or employees of the Kern Medical Center

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for retaliation for whistleblowing activities, for interference 1

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with Plaintiff’s right to medical leave and retaliation for his

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exercise of the right to medical leave, for employment

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discrimination, failure to accommodate and failure to engage in

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interactive consultation concerning an employee with

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disabilities, for denial of procedural due process, defamation,

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and violation of the Fair Labor Standards Act.

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Defendants allege as a Fifth Affirmative Defense that,

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“during Plaintiff’s employment at Kern Medical Center, Plaintiff

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was arrogant, disagreeable, uncooperative, intimidating,

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overbearing, self-righteous and unfriendly and that Plaintiff’s

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behavior contributed to and was the direct and proximate cause of

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any stresses, disabilities or injuries that Plaintiff believes he

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sustained.”

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Pursuant to Rule 72-303(f), Local Rules of Practice, and 28

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U.S.C. § 636(b)(1)(A), Plaintiff’s request for reconsideration

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may be granted if it is concluded that the Magistrate Judge’s

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Order is “clearly erroneous or contrary to law.”

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Upon review of the record in this action, the Magistrate

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Judge’s Order denying Plaintiff’s motion to strike the Fifth

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Affirmative Defense is neither clearly erroneous or contrary to

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law, nor an abuse of discretion.

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In resolving the motion to strike, the Magistrate Judge

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utilized the correct legal standards.

Motions to strike are

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disfavored and resolution of a motion to strike is within the

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Magistrate Judge’s discretion.

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Fifth Affirmative Defense infers contributory or comparative

Plaintiff complains that the

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negligence and that, if Defendant proves facts that Plaintiff’s

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own behavior contributed to the alleged hostile work environment,

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such facts do not dispose of Plaintiff’s claims because none of

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Plaintiff’s claims for relief rest on a theory of negligence. However, evidence of Plaintiff’s conduct is relevant to the

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totality of the circumstances underlying Plaintiff’s allegations,

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including his allegation of a hostile work environment.

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denial of the motion to strike was without prejudice to its

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renewal upon completion of discovery.

The

Plaintiff’s contention

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that the Fifth Affirmative Defense does not provide him fair

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notice in sufficient particularity of the gravamen of the defense

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is unpersuasive and, in any event, can be fleshed out through

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discovery and other pretrial proceedings.

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contention that the Magistrate Judge erred by articulating

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theories upon which Plaintiff’s conduct could constitute a

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defense in addition to that articulated by Defendants does not

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require granting the motion to strike or a conclusion that

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Defendants have waived any such theories.

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is relevant and leave to amend may be requested pursuant to Rule

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15, Federal Rules of Civil Procedure.

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early pretrial phase and discovery is not yet complete.

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As there is no error, Plaintiff’s request for

Finally, Plaintiff’s

The evidence described

This action is in the

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reconsideration by the District Court of a Magistrate Judge’s

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order is DENIED.

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///

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/// 3

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IT IS SO ORDERED.

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Document 81

Dated: 668554

December 17, 2007

/s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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