Free Notice of Correction - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Anthony Principi, 13 Defendant. 14 15 16 Pending are Plaintiff's Motion For Leave To File Motion To Compel and Sanction 17 (Doc. #66), Plaintiff's Motion For Sanctions (Doc. #67), Plaintiff's Motion For Leave to File 18 Second Amended Complaint (Doc. #68), Defendant's Motion To Strike Plaintiff's Motion For 19 Leave (Doc. #72), Plaintiff's Motion To Strike Response to its Motion For Sanctions (Doc. 20 #75), Defendant's Motion To Strike Reply To Response To Motion For Sanctions (Doc. #79), 21 Plaintiff's Motion To Strike and Sanction For Failure To Comply With Disclosure 22 Requirements (Doc. #85). The Court's ruling and reasons are set forth below. 23 I. 24 Subsequent to filing Plaintiff's Motion For Leave To File Motion To Compel and 25 Sanction (Doc. #66), Defendant filed a Motion for Summary Judgment (Doc. #92), which 26 is now fully briefed and raises the issue of whether certain of Plaintiff's claims are timely. 27 In order to resolve the Motion For Sanctions (Doc. #67), i.e., whether sanctions are 28
Case 2:03-cv-02300-ROS Document 115 Filed 09/14/2006 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Martha Slaughter-Payne, Plaintiff, vs.

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

No. 03-2300-PHX-ROS ORDER

Plaintiff's Motion To Compel and Sanction (Doc. #66, 67)

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warranted for destroying documents related to claims that may or may not be actionable, the Court must address issues contained in the summary judgment motion. Plaintiff's Motion For Leave To File Motion To Compel and Sanction (Doc. #66) will be denied on grounds that it is premature, and the Motion For Sanctions (Doc. #67) will be ordered stricken from the record. II. Plaintiff's Motion For Leave To File Second Amended Complaint (Doc. #68) Plaintiff seeks leave to file a Second Amended Complaint to add a claim of bad faith and remove a claim of disparate treatment. Both parties address the Motion to Amend in terms of Federal Rule of Civil Procedure 15(a)'s liberal policy regarding amendments. At this point, however, the request to amend is properly analyzed under Rule 16 as a request to amend the Scheduling Order. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) ("Once the district court had filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending pleadings that rule's standard controlled."). The standard for granting an extension pursuant to Rule 16 is markedly different from the standard pursuant to Rule 15. "Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Id. at 609. Thus, "the focus of the [Rule 16] inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Id. (citation omitted) (emphasis added). Plaintiff contends that at the time she agreed to the October 15, 2004 deadline in the Proposed Case Management Plan, she was unaware that Defendants had destroyed the documents related to the bad faith claim she seeks to add and did not become aware of such destruction until October 25, 2005 when she received Defendants' letter dated October 21, 2005. The Court finds good cause and will grant the Motion. As a result, Defendant's Motion To Strike the Amended Complaint (Doc. #72) will be denied as moot. III. Motions To Strike (Doc. ##75, 79, and 85) -2Case 2:03-cv-02300-ROS Document 115 Filed 09/14/2006 Page 2 of 8

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Plaintiff seeks to strike Defendant's Response to Plaintiff's Motion For Sanctions on the grounds that it exceeds the seventeen page limit pursuant to Local Rule 7.2(e) (Doc. #75). Defendant's Response consists of eighteen pages, in addition to an eight page preface to lengthy Exhibits In Support of His Response to Plaintiff's Motion For Sanctions. Having denied Plaintiff's Motion For Leave To File the Motion For Sanctions, and stricken the Motion For Sanctions, Plaintiff's Motion will be denied as moot.1 Similarly, Defendant seeks to strike the arguments set forth on page 6 of Plaintiff's Reply In Support of Its Motion For Sanctions (Doc. #74). Because the underlying Motion For Sanctions (Doc. #67) will be denied as premature, the Motion To Strike will be denied as moot. Plaintiff also seeks to strike four of Defendant's witnesses for failing to disclose them by the deadline set forth in the Scheduling Order pursuant to Rules 16(b),2 26(e)(1)3 and 374 of the Federal Rules of Civil Procedure. Where a party fails to comply with court discovery orders, a district court in its discretion may strike out portions or pleadings, deem certain facts as established for purposes of the action, or preclude admission of evidence on designated matters. See United States Sumitomo Marine & Fire ins. Co., Ltd., 617 F.2d 1365, 1369 (9th Cir. 1980); Fed. R. Civ. P. 37(c)(1).

Circumventing the page limit requirement in the Local Rules will result in sanctions. Should Defendant wish to file additional pages, he must first seek leave of Court. Fed. R. Civ. P. 16(b) permits district courts to enter a scheduling order modifying times for disclosures under Rule 26(a) and 26(e)(1). Fed. R. Civ. P. 26(e)(1) provides "[a] party is under a duty to supplement at appropriate intervals its disclosures . . . . if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 37(a)(2)(A) provides that "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." -3Case 2:03-cv-02300-ROS Document 115 Filed 09/14/2006 Page 3 of 8
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The deadline for disclosure of expert witnesses contained in the Scheduling Order was March 5, 2005. Plaintiff contends that the four witnesses identified in Defendant's Rule 26(e) Supplemental Disclosures of March 14, 2006 can only be considered expert witnesses, and that because Defendant did not disclose them until one year after the deadline, or seek an extension, they should be precluded from testifying. Defendant argues that the witnesses were not disclosed as experts because they will testify as lay witnesses. The supplemental disclosures identified the witnesses and testimony as follows: A. Donald Huckaby, Chief, IRM, VA Eastern Colorado Health Care Systems (ECHCS) - Mr. Huckaby is expected to testify to VA Information Resources Management Services policies, practices and procedures in general and with specific reference to issues in this lawsuit. B. Mike Jones, Former Chief of Information Resources Management Services Carl T. Hayden VAMC, retired - Mr. Jones is expected to testify to VA Information Resources Management Services policies, practices and procedures in general and with specific reference to issues in this lawsuit. C. Mauricio Ponce, HRM Service Chief WJB Dorn VAMC - Mr. Ponce is expected to testify to VA Human Resources policies, procedures and practices. D. Mike Dole, Director, Workforce Analysis Evaluation Diversity Management & EEO, Department of Veterans Affairs - Mr. Dole will testify to statistical analysis of minority employment, all related aspects of employment at the Carl T. Hayden VAMC, and the policies, practices and procedures generally and with specific reference to issues in this lawsuit.

Federal Rule of Evidence 701 provides that lay opinion testimony is limited to "those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Plaintiff contends that the four witness can only testify as experts under Fed. R. Evid. 702 because they have never met the Plaintiff, never supervised her, been involved or -4Case 2:03-cv-02300-ROS Document 115 Filed 09/14/2006 Page 4 of 8

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witnessed any of the alleged discriminatory conduct. Plaintiff further contends that even if they are admissible as lay witnesses as agents or employees of a party, their testimony will not be admissible "because they do not have personal knowledge of the facts that they will relate and use as a basis for their opinions." Plaintiff's Motion p. 11. Defendant responds that each of these individuals are present or former VA employees whose regular "duties, responsibilities, knowledge training and experience is relevant to the issues in this matter." Defendant's Response to Motion For Sanctions p. 4. Defendant does not purport to offer opinion testimony through these witnesses. Rather, Defendant argues that the proposed witness' testimony pertains to "matters they were responsible for on a day to day basis as part of their job assignments and responsibilities as VA employees performing their official duties." Defendant further argues that the fact they did not know Plaintiff personally is irrelevant. Id. The witnesses' testimony is relevant to Plaintiff's allegations and in particular to establishing how the VA policies, rules, regulations and practices apply to these types of allegations. Contrary to Plaintiff's assertion, it is not a requirement that the witness

personally know the Plaintiff, although courts have found that a witness' familiarity does support a finding that the testimony satisfies Rule 701's requirement that it be rationally based on the perception of the witness. See United States v. Langford, 802 F.2d 1176, 1179 (9th Cir. 1986). Nonetheless, such opinion testimony is admissible "not because of

experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business . . ." F.R.Evid. 701, Advisory Committee Note citing Lightning Lube, Inc. v. Witnco Corp, 4 F.3d 1153 (3d Cir. 1993) (permitting a business owner to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an expert). The Court will permit the witnesses to testify on the basis set forth in the supplemental disclosures and reiterated in Defendant's Response. Plaintiff's Motion will be denied.

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Plaintiff also seeks to strike the testimony of Richard Moore and Rafael Martinez on grounds that they were not made available for deposition. Plaintiff noticed the deposition of Mr. Moore pursuant to Rule 30 of the Federal Rules of Civil Procedure. (Doc. #85, Exh. 5). Prior to the date of his deposition, Defendant notified Plaintiff that because Mr. Moore was no longer a VA employee and had moved to the Washington, D.C. area, Defendant was unable to compel him to travel to Phoenix to appear for the deposition. (Doc. #85, Exh. 6). Defendant noted that Mr. Moore would be willing to be deposed in the Washington, D.C. area. (Doc. #85, Exh. 6). Mr. Moore has not been a VA employee since June 21, 2001, more than two years before this lawsuit commenced. Thus, he is not under Defendant's control. See Lincoln Plaza Assoc. v. Dow Chemical Co., 1985 WL 3409 *1 (E.D.Pa. 1985). In addition, Plaintiff's Notice of Deposition is not effective to compel a witness's testimony, and Defendant has no duty to locate or produce such a witness. Fed. R. Civ. Proc. 45(b)(2). Plaintiff could have either agreed to take Mr. Moore's deposition in the Washington, D.C. area, or subpoenaed him. Id. For these reasons, Plaintiff's Motion To Strike (Doc. #85) Mr. Moore's testimony will be denied. Plaintiff sent a letter of intent to Defendant with several proposed dates to depose Rafael Martinez pursuant to Rule 30 of the Federal Rules of Civil Procedure. (Doc. #85, Exh. 1). Defendant responded that due to a medical condition, Mr. Martinez would not be available for deposition (Doc. #85, Exh. 2); Defendant attached a letter from Dr. Nathan Laufer, Mr. Martinez' doctor, to the same effect (Doc. #85, Exh. 3). Plaintiff objected to Dr. Laufer's letter on grounds that it "fails to provide any diagnosis, symptoms or treatments which would prevent Mr. Martinez from being deposed" and requested a "detailed reason for Mr. Martinez' unavailability within three (3) days . . . ." (Doc. #85, Exh. 4). In a follow-up letter, Dr. Laufer reiterated his recommendation that Mr. Martinez not be deposed, but due to HIPPA regulations, would not provide any further information about Mr. Martinez' condition. (Doc. #85, Exh. 8). Plaintiff never noticed Mr. Martinez' deposition. Although it is questionable whether Mr. Martinez would have appeared, Plaintiff cannot seek sanctions for the failure to appear -6Case 2:03-cv-02300-ROS Document 115 Filed 09/14/2006 Page 6 of 8

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for a deposition that was never noticed. Further, there is nothing to suggest that Dr. Laufer's letter was disingenuous or that Mr. Martinez was able to have his deposition taken in spite of Dr. Laufer's recommendation. To the contrary, at the time Plaintiff sought to take his deposition, Mr. Martinez had been on authorized medical leave for nearly three months. In addition, had Plaintiff noticed Mr. Martinez' deposition, Defendants might have filed a Motion To Quash and the Court would have had an opportunity to consider in camera whether the witness' health would be injured by the stress of a deposition or whether alternatives would be appropriate, such as a telephonic or video deposition. According to Defendant, it offered Plaintiff the option of a telephonic deposition, and Plaintiff rejected that option. (Doc. #88). Plaintiff's contention that Defendant sought to hinder her from deposing Mr. Martinez is unsupported. A November 29, 2005 Order entered the stipulation of both parties to extend the discovery dates in order to conduct the depositions of Mr. Martinez (and Mr. Moore). Since this Order, no further information about this deposition was brought to the Court's attention, and Defendant contends that no further communication was received from Plaintiff until March 27, 2006 when this Motion was filed. For these reasons, Plaintiff's request to strike Mr. Martinez' testimony will be denied. In addition, the Court notes the many motions to strike filed, most of which do not constitute adequate grounds pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, other rules of this Court, or case law. It appears that any time a party disagrees with the opposing party a motion to strike is filed. Such motions are improper and will not be considered. The parties shall not file additional motions to strike absent order of the Court.

Accordingly, IT IS ORDERED that Plaintiff's Motion For Leave To File Motion For Sanctions (Doc. #66) is denied, and that Plaintiff's Motion For Sanctions (Doc. #67) is stricken from the record.

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IT IS FURTHER ORDERED that Plaintiff's Motion For Leave To File Second Amended Complaint (Doc. #68) is granted. The Clerk of Court shall file the document which was lodged as Exhibit 1 to Doc. #68. IT IS FURTHER ORDERED that Defendant's Motion To Strike Plaintiff's Motion For Leave (Doc. #72) is denied as moot. IT IS FURTHER ORDERED that Plaintiff's Motion To Strike Response To Motion (Doc. #75) is denied as moot. IT IS FURTHER ORDERED that Defendant's Motion To Strike (Doc. #79) is denied as moot. IT IS FURTHER ORDERED that Plaintiff's Motion To Strike Witnesses (Doc. #85) is denied.

DATED this 14th day of September, 2006.

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