77 request for reconsideration - reply
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PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 1
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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299
Facsimile: (213) 596-0487Email: [email protected]
Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE
Attorneys for PlaintiffDAVID F. JADWIN, D.O.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,
v.
COUNTY OF KERN; et al.
Defendants.
Case No. 1:07-cv-00026-OWW-TAG
PLAINTIFFS REPLY TO OPPOSITION TOREQUEST FOR RECONSIDERATION BYTHE DISTRICT COURT OF MAGISTRATE
JUDGES RULING ON PLAINTIFFSMOTION TO STRIKE FIFTHAFFIRMATIVE DEFENSE
[28 U.S.C. 636(b)(1)(A); Local Rule 72-303]
Date Action Filed: January 6, 2007Date Set for Trial: August 26, 2008
Plaintiff DAVID F. JADWIN, D.O. (Plaintiff) respectfully submits the following points and
authorities in reply to defendants opposition to plaintiffs request for reconsideration of Magistrate
Judge Theresa A. Goldners October 23, 2007 order denying plaintiffs motion to strike defendants fifth
affirmative defense. (Order). Plaintiff submits this reply pursuant to the minute order of the Court, dated
November 1, 2007, providing that plaintiff shall submit his reply by November 8, 2007.
Case 1:07-cv-00026-OWW-TAG Document 77 Filed 11/08/2007 Page 1 of 7
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PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 2
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I. THE PARTIES AGREED IN MEET AND CONFER THAT THE FIFTH AFFIRMATIVEDEFENSE WAS COMPARATIVE FAULT, DEFENDANTS POST-MOTION CHANGE IN
STANCE NOTWITHSTANDING
Defendants Opposition contends that plaintiffs request for reconsideration misrepresents the
record. The Opposition states: [p]laintiff asserts that the parties narrowed and resolved the [fifth
affirmative defense] to a mutual understanding that it was based on a theory of comparative fault
[during meet and confer]. (Doc. 70, p. 2:2-5). Defendants contend that this is not true, that parties had
polarized positions throughout the meet and confer.
However, in support of this contention, defendants cite only to Defendants Memorandum of
Points and Authorities in Opposition to Motion to Strike, where defendants assumed the exact opposite
tack that the defendants specifically and expressly disclaimed any theory of contributory negligence.
(Doc. 70, p. 2:8-15). Nowhere in the Opposition do defendants cite actual meet and confer
correspondence. Ultimately, the Opposition does nothing to rebut plaintiffs observation in his request
for reconsideration that, on May 9, 2007, in the midst of meet and confer, Mark Wasser, counsel of
record for defendants, stated:
The legal basis for the fifth affirmative defense is comparative fault. Plaintiffsbehavior was a contributing factor to the injuries for which he is seeking generaldamages. Comparative fault is accepted. (Doc. 68, p. 4:13-23)(citation omitted).
Nor does the Opposition rebut plaintiffs observation that on May 17, 2007, Mr. Wasser, still in the
midst of meet and confer with plaintiff, stated:
With regard to the fifth affirmative defense, we believe the facts in this case may presentan opportunity to test the application ofcontributory and comparative fault theoriesin the context of the statutory claims you have asserted. (Doc. 68, p. 4:13-23)(citationomitted).
Defendants took one stance during meet and confer that [t]he legal basis for the fifth affirmative
defense is comparative fault; then in their motion brief, defendants took the exact opposite tack and
specifically and expressly disclaimed any theory of contributory negligence with respect to the fifth
affirmative defense. Plaintiff fails to grasp how defendants post-motion change aboutface disproves
plaintiffs contention that, during the preceding meet and confer, the parties narrowed and resolved the
[fifth affirmative defense] to a mutual understanding that it was based on a theory of comparative
fault.
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PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 3
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II. PURPORTED RELEVANCE IS NOT THE STANDARD FOR AN AFFIRMATIVEDEFENSE
Defendants Opposition states that the fifth affirmative defense puts [p]laintiff on notice that his
own behavior is at issue. It is not complicated. (Doc. 70, p. 2:25-26).An affirmative defense must do more than be at issue. Defendants contention echoes the
Courts erroneous analysis that the fifth affirmative defense is relevant to plaintiffs claims. (Order, p.
4:24). An affirmative defense must do more than be relevant. An affirmative defense must, if deemed
true, dispose of plaintiffs claims.Blacks Law Dictionary defines an affirmative defense as: A
defendants assertion raising new facts and arguments that, if true, will defeat the plaintiffs or
prosecutions claim, even if all allegations in the complaint are true.Blacks Law Dict. (7th ed. 1999) p
430, col. 1-2, italics added. The fifth affirmative defense does not do this. A generalized assertion that
plaintiffs behavior is at issue or is relevant does not suffice.
III.EVEN IF THE MEET AND CONFER IS GIVEN NO EFFECT, THE FIFTH AFFIRMATIVEDEFENSE IS IN ESSENCE A CONTRIBUTORY NEGLIGENCE DEFENSE WHICH IS
LEGALLY INSUFFICIENT
The Court, in finding the fifth affirmative defense relevant, misapplied the totality of the
circumstances test. The Court states that [p]laintiffs hostile work environment allegations bring into
issue the totality of the circumstances of his work environment . . . Each of these issues concerns
defendants and plaintiffs behavior at KMC. The fifth affirmative defense alleges that plaintiffs own
behavior caused the problems he encountered at KMC. Order, p. 5:5-11. However, the totality of the
circumstances test is used to measure the objective hostility of the victims working environment.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-21, 23 (1993); Fuller v. City of Oakland, 47 F.3d 1522,
1527 (9th Cir. 1995). Whether plaintiffs own behavior caused the problems he encountered at
KMC is irrelevant to the totality of the circumstances test (Order, p. 5:10-11)(emphasis added).
The Court states that it is concerned with whether plaintiff caused any of the hostility; in so
doing, the Court is in essence restating the contributory negligence defense. Plaintiff has already
extensively briefed why the concept of comparative fault is irrelevant to plaintiffs claims and therefore
legally insufficient. (Doc. 37).
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ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 4
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Likewise, although [d]efendants specifically and expressly disclaimed any theory of
contributory negligence. (Doc. 70, p. 2:13-14), defendants essentially resurrect this same theory when
they contend that they are entitled to develop a defense by, among other things, showing how
Plaintiffs behavior eroded the work environment at Kern Medical Center. (Doc. 70, p. 3:2-4). In other
words, defendants are contending that the fifth affirmative defense relates to whether plaintiff
negligently contributed to the hostility of his work environment.
Defendants have yet to make any showing as to what the exact relevance of the fifth affirmative
defense is, aside from defendants bald assertions that it is relevant. If anything, it is apparent that
defendants strategy in this action will be to attempt to smear plaintiff and prejudice the fact-finders.
Even more apparent is that defendants are unable to cite any actual misconduct, unlawful, negligent or
otherwise, by Plaintiff, and so they relegate themselves to focusing only on Plaintiffs behavior as
their defense.
IV.THE MAGISTRATE JUDGE SUA SPONTE RAISED NEW AFFIRMATIVE DEFENSESDefendants assert plaintiff misstates the Magistrate Judges Order, and that the Magistrate
Judge discussed the concepts of unclean hands and equitable estoppel merely as examples of theories
that subject a plaintiffs behavior to scrutiny. (Doc. 70, p. 3:13-15).
A review of the Order suggests otherwise. The Order states: An allegation that a party has acted
inequitably or asserted a claim in bad faith gives rise to an unclean hands defense. An allegation that a
party has sought to benefit from his own wrongdoing gives rise to an equitable estoppel. Both are
apparent in the fifth affirmative defense. (Order, p. 5:23-26)(emphasis added). The Order also states:
The problem with plaintiffs premise is that it characterizes the fifth affirmative defense as exclusively
contributory negligence and ignores the fact that it concerns other defenses as well. (Order, p. 5:20-
22). The Court was going beyond mere hypothetical speculation. The Court was concluding that the fifth
affirmative defense concerns unclean hands and equitable estoppel, and that these defenses are
apparent in the fifth affirmative defense. In short, the Court was sua sponte raising new defenses
which had not been previously raised by defendants.
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PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 5
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V. THE MAGISTRATE JUDGE MIS-APPLIED THE LIBERAL REVIEW STANDARD ON AMOTION TO STRIKE
It should be further pointed out that, in liberally construing the fifth affirmative defense in the
light most favorable to defendants, the Court did not engage in the analysis of examining a singledefense and determining whether under no set of circumstances could the defense succeed, as would
have been proper (Order, p. 7:1). Rather, the Court mis-applied the liberal review standard on a motion
to strike to determine that the vaguely-worded fifth affirmative defense could advance a multiplicity of
separate defenses which were either relevant (hostile work environment causation, Order, p. 4:24-
5:16), or could conceivably succeed (unclean hands and equitable estoppel, Order, p. 6:4-7:5). In so
doing, the Court disregarded the fundamental requirement that an affirmative defense must first place
plaintiff on fair notice as to what the defense is. The Court denied plaintiffs motion to strike based on
this erroneous analysis.
If the parties meet and confer (establishing that the fifth affirmative defense is contributory
negligence) is given no effect, then the fifth affirmative defense fails to give plaintiff fair notice as to
what exactly the defense is. The Court itself suggested no less than four possibilities: (i) contributory
negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense that can loosely be
described as hostile work environment causation (essentially a contributory negligence defense). The
Court does not foreclose the possibility that the fifth affirmative defense could stand for yet additional
defenses.
Likewise, defendants statement in their Opposition brief that they are entitled to develop a
defense by, among other things, showing how Plaintiffs behavior eroded the work environment at
Kern Medical Center confirms that defendants are intending to leverage the fifth affirmative defense as
a placeholder for a multiplicity of affirmative defenses of Defendants later choosing. (Doc. 70, p. 3:2-
4)(emphasis added).
To date, plaintiff continues to have no idea what defense(s) the fifth affirmative defense is
advancing. This confusion prejudices plaintiffs discovery and trial planning. Plaintiff is forced to
consider the entire universe of defenses for which the fifth affirmative defense could conceivably stand
and plan accordingly. Defendants assert [t]here is no lack of notice regarding the meaning of the fifth
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PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 6
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affirmative defense. (Doc. 70, p. 3:9). Plaintiff disagrees.
In fact, the Courts disregard of the fair notice requirement has the perverse result of rewarding
defendants for stating an affirmative defense in terms so vague that under a liberal review standard it
could stand for an infinity of defenses and thus always survive a motion to strike. In short, the vaguer
the defense, the better. This has proven to be precisely the case with respect to the fifth affirmative
defense.
VI.CONCLUSIONThe parties had met and conferred and reached a mutual understanding that the fifth affirmative
defense advanced a contributory negligence defense. Defendants own meet and confer communications
establish this. Plaintiff relied on this narrowing of the issues in briefing its motion to strike. The fact that
defendants chose to make the exact opposite contention in their opposition brief does not obviate the
narrowing of the issues that occurred during the meet and confer process. If such were the case, the meet
and confer process would have no value or legitimacy and would be an exercise in futility.
However, if the meet and confer is given no effect, then the fifth affirmative defense fails to give
plaintiff fair notice as to what the defense being advanced is. The Court erred in disregarding this
fundamental requirement and then applying a liberal review standard to conclude that the fifth
affirmative defense advanced no less than four separate defenses, and possibly more. The fact that the
Court identified a multiplicity of defenses being advanced by the fifth affirmative defense only
underscores plaintiffs contention that the fifth affirmative defense does not give fair notice as to the
substance of the defense being advanced. Moreover, the Courts disregard of this fair notice requirement
has the perverse result of rewarding defendants for stating an affirmative defense as vaguely as possible
so as to maximize its chances of surviving a motion to strike under the liberal review standard. The less
notice an affirmative defense gives plaintiff as to what exact defense it is advancing, the greater the
likelihood the Court can apply a liberal review standard to identify a multiplicity of defenses being
advanced by such affirmative defense, assuring its survival of any motion to strike brought by plaintiff.
To date, plaintiff continues to have no notice as to what defense the fifth affirmative defense is
advancing.
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PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 7
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Plaintiff respectfully requests the District Court reconsider the Order of the Magistrate Judge
denying plaintiffs motion to strike the fifth affirmative defense.
Respectfully submitted on November 8, 2007.
/s/ Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]
/s/ Joan Herrington, SB# 178988 (as authorized on 11/8/07)BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
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