81 order denying mx for reconsideration

Upload: eugene-d-lee

Post on 30-May-2018

217 views

Category:

Documents


0 download

TRANSCRIPT

  • 8/14/2019 81 Order Denying Mx for Reconsideration

    1/4

  • 8/14/2019 81 Order Denying Mx for Reconsideration

    2/4

    1

    2

    3

    4

    5

    6

    7

    8

    9

    10

    11

    12

    13

    14

    15

    16

    17

    18

    19

    20

    21

    22

    23

    24

    25

    26

    2

    with Plaintiffs right to medical leave and retaliation for his

    exercise of the right to medical leave, for employment

    discrimination, failure to accommodate and failure to engage in

    interactive consultation concerning an employee with

    disabilities, for denial of procedural due process, defamation,

    and violation of the Fair Labor Standards Act.

    Defendants allege as a Fifth Affirmative Defense that,

    during Plaintiffs employment at Kern Medical Center, Plaintiff

    was arrogant, disagreeable, uncooperative, intimidating,

    overbearing, self-righteous and unfriendly and that Plaintiffs

    behavior contributed to and was the direct and proximate cause of

    any stresses, disabilities or injuries that Plaintiff believes he

    sustained.

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

    U.S.C. 636(b)(1)(A), Plaintiffs request for reconsideration

    may be granted if it is concluded that the Magistrate Judges

    Order is clearly erroneous or contrary to law.

    Upon review of the record in this action, the Magistrate

    Judges Order denying Plaintiffs motion to strike the Fifth

    Affirmative Defense is neither clearly erroneous or contrary to

    law, nor an abuse of discretion.

    In resolving the motion to strike, the Magistrate Judge

    utilized the correct legal standards. Motions to strike are

    disfavored and resolution of a motion to strike is within the

    Magistrate Judges discretion. Plaintiff complains that the

    Fifth Affirmative Defense infers contributory or comparative

    Case 1:07-cv-00026-OWW-TAG Document 81 Filed 12/17/2007 Page 2 of 4

  • 8/14/2019 81 Order Denying Mx for Reconsideration

    3/4

    1

    2

    3

    4

    5

    6

    7

    8

    9

    10

    11

    12

    13

    14

    15

    16

    17

    18

    19

    20

    21

    22

    23

    24

    25

    26

    3

    negligence and that, if Defendant proves facts that Plaintiffs

    own behavior contributed to the alleged hostile work environment,

    such facts do not dispose of Plaintiffs claims because none of

    Plaintiffs claims for relief rest on a theory of negligence.

    However, evidence of Plaintiffs conduct is relevant to the

    totality of the circumstances underlying Plaintiffs allegations,

    including his allegation of a hostile work environment. The

    denial of the motion to strike was without prejudice to its

    renewal upon completion of discovery. Plaintiffs contention

    that the Fifth Affirmative Defense does not provide him fair

    notice in sufficient particularity of the gravamen of the defense

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

    discovery and other pretrial proceedings. Finally, Plaintiffs

    contention that the Magistrate Judge erred by articulating

    theories upon which Plaintiffs conduct could constitute a

    defense in addition to that articulated by Defendants does not

    require granting the motion to strike or a conclusion that

    Defendants have waived any such theories. The evidence described

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

    15, Federal Rules of Civil Procedure. This action is in the

    early pretrial phase and discovery is not yet complete.

    As there is no error, Plaintiffs request for

    reconsideration by the District Court of a Magistrate Judges

    order is DENIED.

    ///

    ///

    Case 1:07-cv-00026-OWW-TAG Document 81 Filed 12/17/2007 Page 3 of 4

  • 8/14/2019 81 Order Denying Mx for Reconsideration

    4/4

    1

    2

    3

    4

    5

    6

    7

    8

    9

    10

    11

    12

    13

    14

    15

    16

    17

    18

    19

    20

    21

    22

    23

    24

    25

    26

    4

    IT IS SO ORDERED.

    Dated: December 17, 2007 /s/ Oliver W. Wanger668554 UNITED STATES DISTRICT JUDGE

    Case 1:07-cv-00026-OWW-TAG Document 81 Filed 12/17/2007 Page 4 of 4