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68 DFJ Request for Reconsideration of Order Denying MTS

68 DFJ Request for Reconsideration of Order Denying MTS

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Published by Eugene D. Lee

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Published by: Eugene D. Lee on Aug 13, 2009
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02/06/2013

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PLAINTIFF’S REQUEST FOR RECONSIDERATION OF COURT’S ORDERDENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 1
 
12345678910111213141516171819202122232425262728Eugene D. Lee SB# 236812L
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 555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: elee@LOEL.comJoan Herrington, SB# 178988B
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 5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: jh@baelo.comOf Counsel to LAW OFFICE OF EUGENE LEEAttorneys for Plaintiff DAVID F. JADWIN, D.O.
UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIADAVID F. JADWIN, D.O.,
Plaintiff,v.
COUNTY OF KERN; et al.
Defendants.Case No. 1:07-cv-00026-OWW-TAG
PLAINTIFF’S REQUEST FORRECONSIDERATION BY THE DISTRICTCOURT OF MAGISTRATE JUDGE’SRULING ON PLAINTIFF’S MOTION TOSTRIKE FIFTH AFFIRMATIVE DEFENSE 
[28 U.S.C. § 636(b)(1)(A); Local Rule 72-303]
 
Date Action Filed: January 6, 2007Date Set for Trial: August 26, 2008Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points andauthorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldner’sOctober 23, 2007 order denying plaintiff’s motion to strike defendants’ fifth affirmative defense. (Doc.64).Plaintiff contends that the order denying plaintiff’s motion to strike is clearly erroneous and
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 1 of 42
 
 
PLAINTIFF’S REQUEST FOR RECONSIDERATION OF COURT’S ORDERDENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 2
 
12345678910111213141516171819202122232425262728contrary to law for the following reasons:1.
 
The Court disregarded the narrowing of the issues by the parties during meet and conferregarding the defendants’ fifth affirmative defense (“FAD”). During meet and confers, the partiesnarrowed and resolved the FAD to a mutual understanding that, as defendants stated, “[t]he legal basisfor the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing factor to theinjuries for which he is seeking general damages. Comparative fault is accepted.” (Doc. 46, ¶ 4).Plaintiff relied on this understanding, focusing exclusively on contributory/comparative negligence inhis motion briefing. The Court ruled plaintiff had assumed a “faulty premise” that contributorynegligence was the only defense exclusively advanced by the FAD, then proceeded to suggest otherdefenses for which the FAD could stand.2.
 
The FAD fails to provide fair notice to plaintiff, in sufficient particularity, of the defensebeing advanced. The Court suggested that the FAD could stand for no less than four separate defenses:(i) contributory negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense thatcan loosely be described as “hostile work environment causation” (essentially a contributory negligencedefense). The Court does not say whether the FAD could stand for other possible defenses. The FADhas become a placeholder for a defense of defendants’ choosing. Plaintiff remains at a loss as to whichspecific defense the FAD advances.3.
 
The Court
sua sponte
raised the affirmative defenses of unclean hands, equitable estoppeland an erstwhile defense that can loosely be described as “hostile work environment causation”.Defendants had raised these defenses not once during the meet and confer process, nor even in theirmotion briefing.
I.
 
INTRODUCTION
Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center(“KMC”) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaintalleges, among other things, that defendants engaged in the following illegal acts: whistleblowerretaliation, disability discrimination, medical leave interference and retaliation, demotion and payreduction without due process, and Fair Labor Standard Act violations. When plaintiff began reportingseveral patient care quality issues at KMC starting in 2001, defendants responded by singling out and
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 2 of 42
 
 
PLAINTIFF’S REQUEST FOR RECONSIDERATION OF COURT’S ORDERDENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 3
 
12345678910111213141516171819202122232425262728targeting plaintiff for harassment, retaliation and humiliation over the course of the next six years. In2005, defendants’ conduct finally caused plaintiff to suffer clinical depression. When plaintiff beganreduced work schedule sick leave in 2006 to treat his depression, defendants responded by demoting himand retaliating against him further, effectively ending plaintiff’s pathology career.
II.
 
PROCEDURAL HISTORY
On January 6, 2007, plaintiff filed his complaint (Doc. 1). Plaintiff subsequently filed twosupplemental complaints on April 24 (Doc. 24) and June 13, 2007 (Doc. 30), respectively. Defendantsfiled their answer on April 30, 2007 (Doc. 25), and their answer to the second supplemental complainton June 21, 2007 (Doc. 31, a true and correct copy of which is attached as Exhibit 1).In their answer, Defendants asserted the fifth affirmative defense as follows:Defendants allege that, during Plaintiff’s employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous andunfriendly and that Plaintiff’s behavior contributed to and was the direct and proximatecause of any stresses, disabilities or injuries that Plaintiff believes he sustained.The parties met and conferred extensively regarding the FAD starting on May 11, 2007. On July11, 2007, Plaintiff filed the motion to strike the FAD (Doc. 32). Magistrate Judge Theresa A. Goldnerheard oral arguments on August 13, 2007.On October 23, 2007, the Court issued an order denying plaintiff’s motion to strike (Doc. 64, atrue and correct copy of which is attached as Exhibit 2). The Court found that the FAD was “legallysufficient and that an order striking the defense is not warranted at this time”. See
Order 
at p. 7:2-3. TheCourt also found that the FAD “does not reflect cruelly on plaintiff’s character, does not use repulsivelanguage, and is not sufficiently derogatory or degrading to constitute a scandalous matter within themeaning of Rule 12 of the Federal Rules of Civil Procedure”. See
Order 
at pp. 7:24 – 8:1.
III.
 
AUTHORITY FOR MOTION
A District Court judge may reconsider pre-trial matters where it has been shown that themagistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Local Rule72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decisionwas manifestly unjust.
School District No. 1J, Multnomah County v. ACandS, Inc.
, 5 F.3d 1255, 1263(9th Cir. 1993).
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 3 of 42

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