81 order denying mx for reconsideration
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8/14/2019 81 Order Denying Mx for Reconsideration
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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
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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.
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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