Upload
eugene-d-lee
View
215
Download
0
Embed Size (px)
Citation preview
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
1/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 1
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
27
28
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 REQUEST FORRECONSIDERATION BY THE DISTRICTCOURT OF MAGISTRATE JUDGES
RULING ON PLAINTIFFS 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, 2008
Plaintiff DAVID F. JADWIN, D.O. (Plaintiff) respectfully submits the following points and
authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldners
October 23, 2007 order denying plaintiffs motion to strike defendants fifth affirmative defense. (Doc.
64).
Plaintiff contends that the order denying plaintiffs motion to strike is clearly erroneous and
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 1 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
2/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 2
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
27
28
contrary to law for the following reasons:
1. The Court disregarded the narrowing of the issues by the parties during meet and confer
regarding the defendants fifth affirmative defense (FAD). During meet and confers, the parties
narrowed and resolved the FAD to a mutual understanding that, as defendants stated, [t]he legal basis
for the fifth affirmative defense is comparative fault. Plaintiffs behavior was a contributing factor to the
injuries 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 in
his motion briefing. The Court ruled plaintiff had assumed a faulty premise that contributory
negligence was the only defense exclusively advanced by the FAD, then proceeded to suggest other
defenses for which the FAD could stand.
2. The FAD fails to provide fair notice to plaintiff, in sufficient particularity, of the defense
being 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 that
can loosely be described as hostile work environment causation (essentially a contributory negligence
defense). The Court does not say whether the FAD could stand for other possible defenses. The FAD
has become a placeholder for a defense of defendants choosing. Plaintiff remains at a loss as to which
specific defense the FAD advances.
3. The Court sua sponte raised the affirmative defenses of unclean hands, equitable estoppel
and 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 their
motion briefing.
I. INTRODUCTIONPlaintiff 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 complaint
alleges, among other things, that defendants engaged in the following illegal acts: whistleblower
retaliation, disability discrimination, medical leave interference and retaliation, demotion and pay
reduction without due process, and Fair Labor Standard Act violations. When plaintiff began reporting
several 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
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
3/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 3
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
27
28
targeting plaintiff for harassment, retaliation and humiliation over the course of the next six years. In
2005, defendants conduct finally caused plaintiff to suffer clinical depression. When plaintiff began
reduced work schedule sick leave in 2006 to treat his depression, defendants responded by demoting him
and retaliating against him further, effectively ending plaintiffs pathology career.
II. PROCEDURAL HISTORYOn January 6, 2007, plaintiff filed his complaint (Doc. 1). Plaintiff subsequently filed two
supplemental complaints on April 24 (Doc. 24) and June 13, 2007 (Doc. 30), respectively. Defendants
filed their answer on April 30, 2007 (Doc. 25), and their answer to the second supplemental complaint
on 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 Plaintiffs employment at Kern Medical Center, Plaintiffwas arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous andunfriendly and that Plaintiffs 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 July
11, 2007, Plaintiff filed the motion to strike the FAD (Doc. 32). Magistrate Judge Theresa A. Goldner
heard oral arguments on August 13, 2007.
On October 23, 2007, the Court issued an order denying plaintiffs motion to strike (Doc. 64, a
true and correct copy of which is attached as Exhibit 2). The Court found that the FAD was legally
sufficient and that an order striking the defense is not warranted at this time. See Orderat p. 7:2-3. The
Court also found that the FAD does not reflect cruelly on plaintiffs character, does not use repulsive
language, and is not sufficiently derogatory or degrading to constitute a scandalous matter within the
meaning of Rule 12 of the Federal Rules of Civil Procedure. See Orderat pp. 7:24 8:1.
III.AUTHORITY FOR MOTIONA District Court judge may reconsider pre-trial matters where it has been shown that the
magistrate judges order is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); Local Rule
72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision
was 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
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
4/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 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
27
28
IV.LEGAL ANALYSIS & ARGUMENTA. The Court Disregarded the Parties Meet and ConferThe purpose of meet and confer is to resolve and narrow disputes between parties prior to
resorting to court intervention.Dondi Prop. Corp. v. Commerce Sav. and Loan Ass'n (N.D.Tex. 1988)
121 F.R.D. 284, 289 ([t]he purpose of the conference requirement is to promote a frank exchange
between counsel to resolve issues by agreement or to at least narrow and focus the matters in
controversy before judicial resolution is sought.);El Dorado Irrigation Dist. v. Traylor Bros., Inc.,
2005 U.S. Dist. LEXIS 26011 (D. Cal. 2005) (The meet and confer process, critical to narrow
discovery disputes, and which are required by the rules, should not be interpreted as an invitation to be
initially stubborn or careless, nor used as a means by which discovery timeliness can be unilaterally
extended).
Plaintiff and defendants had been meeting and conferring extensively regarding the FAD from
May 11, 2007 to July 6, 2007. (Doc. 33). During the course of that process, the parties mutually
narrowed the many defenses potentially advanced by the vaguely-worded FAD to a single defense:
contributory/comparative fault. On May 9, 2007, 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 general
damages. Comparative fault is accepted. (Doc. 46, p. 7)(Emphasis added).
Once the parties had reached an understanding that the FAD was advancing the defense of
contributory/comparative fault, plaintiff proceeded to brief defendants on the inapplicability of that
defense to the claims alleged in plaintiffs complaint. In response, on May 17, 2007, Mr. Wasser 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. 33, p. 12)(Emphasisadded).
In briefing the motion to strike, Plaintiffdetrimentally relied on this narrowing of the issues
which the parties had achieved through meet and confer. As Plaintiff noted in his reply brief, In fact,
Defendants have expressly admitted that the FAD articulates a comparative negligence defense. (Doc.
45, p. 2:11-16, a true and correct copy of which is attached as Exhibit 3). Plaintiffs motion to strike and
reply focused exclusively on the inapplicability of a contributory/comparative fault defense to plaintiffs
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 4 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
5/42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
6/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 6
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
27
28
Sec. People, Inc. v. Classic Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641 (D. Cal. 2005) (With
respect to the former, the Ninth Circuit, citing Conley v. Gibson, has held that [t]he key to determining
the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the
defense.)(citations omitted); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.
2007) (However, the mere assertion of a broad category of legal theories, such as estoppel, with
numerous possible applications requires additional specificity to satisfy the notice pleading standard.).
If the parties meet and confer process is given no effect, then the FAD as currently worded fails
to provide fair notice to plaintiff of the defense being advanced. The FAD contains only loosely
generalized indictments on Plaintiffs character and behavior, accusing him of being arrogant,
disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly.
The Court itself suggested that the FAD could stand for no less than four separate defenses:
contributory negligence, unclean hands, equitable estoppel, and hostile work environment causation
(essentially a contributory negligence defense). The Court does not say whether there are even more
possible defenses advanced by the FAD. The question remains, which defense does the FAD stand
for? Plaintiff is not on fair notice as to what that defense is. The FAD has essentially become a
placeholder for defendants; defendants have the option to ascribe whatever affirmative defense they
wish to the FAD without so much as having to request the Courts leave to amend their answer.
Meanwhile, plaintiff must surmise every possible defense for which the FAD might stand and litigate
accordingly so as to account for them all.
C. The Court Sua Sponte Raised Affirmative DefensesIf defendant waives a matter by failing to plead it as an affirmative defense, the court usually
cannot thereafter raise the issue on its own. Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil
Procedure Before Trial (2007) 8:229.1; see alsoState of Nevada Employees Assoc., Inc. v. Keating
(9th Cir. 1990) 903 F2d 1223, 1225 (where D had not pleaded res judicata as defense, court could not
decide sua sponte that P's claims were barred by res judicata);Eriline Co. S.A. v. Johnson (4th Cir.
2006) 440 F3d 648653 (court precluded from sua sponte raising statute of limitations defense).
The Court sua sponte raised the affirmative defenses of unclean hands, equitable estoppel and
hostile work environment causation. Defendants never once raised these defenses during the meet and
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 6 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
7/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 7
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
27
28
confer process and in their motion briefing.
The Court rules that defendants raised these defenses in the FAD. A plain reading of the FAD
dictates otherwise. For instance, nowhere does the FAD reference unclean hands or inequitable
misconduct by plaintiff.
The wording of the FAD most immediately suggests a contributory negligence defense:
[Plaintiffs behavior] was the direct and proximate cause of any [damages] that Plaintiff believes he
sustained. In fact, the parties mutually arrived at exactly this conclusion during meet and confer.
Plaintiff has already submitted extensive briefing why this defense is utterly inapplicable to plaintiffs
strict liability/intentional claims. (Doc. 32). The Court chose not to address plaintiffs arguments.
The Court states that the FAD advances an equitable estoppel defense. However, legal authority
establishes that defendants must allege all of the elements of equitable estoppel in their pleadings.
Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 1996 U.S. Dist. LEXIS 11696 (D. Cal. 1996)
(To plead equitable estoppel, a party must allege three essential elements: (1) the party to be estopped,
who usually must have had knowledge of the true facts, communicated something in a misleading way,
either by words, conduct or silence; (2) the pleading party relied upon that communication; and (3) the
pleading party would be harmed materially if the other party is permitted to assert any claim inconsistent
with his earlier conduct.); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.
2007) (While in some cases, merely naming a particular defense will be sufficient to satisfy the notice
pleading standard, other affirmative defenses require greater specificity, including additional factual
allegations, in order to be properly pleaded (citing Sun Microsystems v. Dataram Corp., No. CIV. 96-
20708 SW, 1997 U.S. Dist. LEXIS 4557, 1997 WL 50272, at *4 (N.D. Cal. Feb. 4, 1997 for the holding
that a plaintiff must plead each element of estoppel to survive a motion to strike.).
The Court further 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. The Court concludes this constitutes an
affirmative defense. But an affirmative defense requires more than mere relevance; it must dispose of
plaintiffs claims even after assuming plaintiffs allegations are true. Sec. People, Inc. v. Classic
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 7 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
8/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 8
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
27
28
Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641 (D. Cal. 2005) (striking an allegation as a denial, not
an affirmative defense, and citing Black's Law Dictionary 451 (8th ed. 2004) for the proposition that an
affirmative defense assumes the truth of the opposing parties' allegations). If plaintiffs allegations are
deemed true that defendants created a hostile working environment with retaliatory intent, then the fact
that plaintiffs own behavior allegedly contributed to and directly and proximately caused the hostile
working environment, even if deemed to be true, does not dispose of plaintiffs claim. It is not an
affirmative defense. This represents just another variation of the contributory negligence defense, which
plaintiffs briefing already extensively establishes is in no way applicable to plaintiffs strict
liability/retaliatory intent claims. (Doc. 32).
In light of the fact that the FAD did not sufficiently advance the above defenses, defendants have
waived them. See Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial
(2007) 8: 229 (Generally, if not asserted in a responsive pleading, the affirmative defense is waived,
and evidence of such defense is inadmissible at trial)(citingArizona v. California (2000) 530 US 392,
410, 120 S.Ct. 2304, 23162317; Carroll v. AcmeCleveland Corp. (7th Cir. 1992) 955 F2d 1107, 1115;
Ingraham v. United States (5th Cir. 1987) 808 F2d 1075, 1079).
The Court is therefore sua sponte raising the defenses after defendants have already waived
them. This is clearly erroneous and contrary to law.
V. CONCLUSIONPlaintiff does not make this request lightly. It is always a daunting decision to request
reconsideration of an esteemed Magistrate Judges order. However, plaintiff must respectfully object
that the Courts order is clearly erroneous and contrary to law for the foregoing reasons. Plaintiff
respectfully requests that the Court reconsider Magistrate Judge Goldners order and grant Plaintiffs
motion to strike.
//
//
//
//
///
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 8 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
9/42
PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER
DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 9
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
27
28
Respectfully submitted on October 29, 2007.
/s/ Eugene D. Lee SB# 236812
LAW
OFFICE OF
EUGENE
LEE
555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]
/s/ Joan Herrington, SB# 178988 (as authorized on10/29/07)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.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 9 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
10/42
EXHIBITS
EXHIBIT 1. Defendants Answer to Second Supplemental Complaint (Doc. 31)
EXHIBIT 2. Order Denying Motion to Strike (Doc. 64).
EXHIBIT 3. Plaintiffs Reply to Opposition to Motion to Strike (Doc. 45).
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 10 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
11/42
EXHIBIT 1. Defendants Answer to Second Supplemental Complaint (Doc. 31)
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 11 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
12/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
1
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405
E-mail: [email protected] C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]
Attorneys for Defendants County of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,
Jennifer Abraham, Scott Ragland, Toni Smithand William Roy
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.
Plaintiff,
vs.
COUNTY OF KERN, et al.,
Defendants.
)))
)))))))
Case No.: 1:07-cv-26
ANSWER TO SECOND
SUPPLEMENTAL COMPLAINT
Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental
Complaint as follows:
1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.2. Defendants admit the allegations contained in paragraph 4.3. Defendants deny the allegations contained in paragraph 5.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 12 of 42
mailto:[email protected]:[email protected]:[email protected]:[email protected]8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
13/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
2
1
2
6
7
8
11
15
19
20
24
3
45
5. In response to the allegations contained in paragraph 8, Defendants admit thatPeter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
during most of the time alleged in the Complaint. Defendants deny the remaining allegationscontained in paragraph 8.
9
10
8. In response to the allegations contained in paragraph 16, Defendants admit thatPlaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a
belief as to the truth of the remaining averments in paragraph 16.
12
13
14
9. In response to the allegations contained in paragraph 17, Defendants admit thatPlaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
Chair of the Pathology Department. Defendants deny all remaining allegations contained in
paragraph 17.
16
17
18
10. In response to the allegations contained in paragraph 18, Defendants admit thatPlaintiff complained about departmental procedures and policies at Kern Medical Center and
interfered with patient care provided by Kern Medical Center and its physicians. Defendants
deny all remaining allegations contained in paragraph 18.
21
22
23
12. In response to the allegations contained in paragraph 21, Defendants admit thatPlaintiff requested and received multiple leaves of absence and that the terms and conditions of
the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining
allegations contained in paragraph 21.
25
26
27
28
13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendantsadmit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was
removed from his position as Chair of the Pathology Department because he was neither working
full-time nor present in the hospital and that his compensation was reduced. Defendants also
admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote
4. Defendants admit the allegations contained in paragraphs 6 and 7.
6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.7. Defendants deny all the allegations contained in paragraph 15.
11. Defendants deny all the allegations contained in paragraphs 19 and 20.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 13 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
14/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
3
1
2
3
letters to several physicians and administrators at Kern Medical Center and other health care
organizations and was placed on administrative leave. Defendants deny all remaining allegations
in those paragraphs.
4
8
9
12
17
21
24
25
28
5
6
7
10
11
16. In answer to the allegations contained in paragraph 27, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
paragraph 27.
13
14
15
16
17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admitthat Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
of Chair of the Pathology Department and that he was compensated and provided with certain
benefits pursuant to a written employment agreement. Defendants deny all remaining allegations
contained in paragraphs 28 and 29.
18
19
20
18. In response to the allegations contained in paragraph 30, Defendants admit thatPlaintiff was expected to be an effective member of the physicians staff at Kern Medical Center
and to contribute to the overall improvement of the hospital. Defendants deny all remaining
allegations contained in paragraph 30.
22
23
19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendantsadmit that interpretation of the referenced documents is a question of law. Defendants deny all
remaining allegations contained in those paragraphs.
26
27
21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendantsadmit that interpretation of the referenced documents is a question of law. Defendants deny all
remaining allegations contained in those paragraphs.
14.
In response to the allegations contained in paragraph 25, Defendants admit thatPlaintiff has been provided with the information he requested from the computer that was
previously assigned to him. Defendants deny all remaining allegations contained in paragraph
25.
15. Defendants deny all the allegations contained in paragraph 26.
20. Defendants admit the allegations contained in paragraph 34.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 14 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
15/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
4
1
3
7
11
15
21
28
2
22
45
6
8
9
10
24. In response to the allegations contained in paragraphs 40 and 41, Defendantsadmit that Plaintiffs former attorney sent a letter to Bernard Barmannand that Plaintiff met with
Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations
contained in those paragraphs.
12
13
14
25. In response to the allegations contained in paragraphs 42 and 43, Defendantsadmit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed
with other staff physicians about patient care and wrote letters expressing his disagreement.
Defendants deny all remaining allegations contained in those paragraphs.
16
17
18
19
20
26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,Defendants admit that disagreements arose between Plaintiff and William Roy regarding the
review of pathology reports, the timeliness and accuracy of Plaintiffs pathology reports and
Plaintiffs management of the Pathology Department and that letters were written by the Plaintiff
and others regarding these issues. Defendants deny all remaining allegations contained in those
paragraphs.
22
23
24
25
26
27
27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern
Medical Center, including some of the Defendants, regarding the review of pathology reports,
the timeliness and accuracy of Plaintiffs pathology reports, Plaintiffs management of the
Pathology Department, hospital policies and procedures and patient care. Defendants further
admit that letters were written by the Plaintiff and others regarding these issues. Defendants
deny all remaining allegations contained in those paragraphs.
. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 38.
23. In response to the allegations contained in paragraph 39, Defendants admit thatPlaintiff complained about policies and procedures at Kern Medical Center and that his actionsinterfered with patient care. Defendants deny all remaining allegations contained in paragraph
39.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 15 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
16/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
5
1
8
9
12
16
17
20
25
28
2
3
45
6
7
28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and
prevented appropriate discussion of case management and that other physicians at Kern Medical
Center, including some of the Defendants, were concerned about Plaintiffs conduct and with hisinterference with patient care. Defendants further admit that letters were written by Plaintiff,
William Roy and others about the incident. Defendants deny all remaining allegations in those
paragraphs.
10
11
30. In response to the allegations contained in paragraph 64, Defendants are withoutknowledge or information sufficient to form a belief as to the truth of the averments contained in
paragraph 64.
13
14
15
31. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
Defendants regarding Plaintiffs conduct and criticism of Kern Medical Centers policies and
procedures. Defendants deny all remaining allegations contained in those paragraphs.
18
19
33. In response to the allegations contained in paragraph 74 and 75, Defendants admitthat Plaintiffs entitlement to leave under FMLA and CFRA is a question of law. Defendants
deny all remaining allegations contained in those paragraphs.
21
22
23
24
34. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
for multiple reasons and that there are several documents authored by Plaintiff and others
regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all
remaining allegations in those paragraphs.
26
27
35. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
regarding leaves of absence. Defendants deny that Plaintiff engaged in any whistleblowing
29. Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.
32. Defendants deny all the allegations contained in paragraph 73.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 16 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
17/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
6
1
2
activity and that Plaintiff is or ever was a whistleblower. Defendants deny all remaining
allegations in those paragraphs.
3
5
12
13
18
22
23
26
28
4
36
6
7
8
9
10
11
37. In response to the allegations contained in paragraphs 89, 90, 91 and 92,Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
leaves of absence that Plaintiff requested and Plaintiffs tenure as Chair of the Pathology
Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the
Joint Conference Committee voted to remove Plaintiff from his position as Chair of the
Pathology Department at Kern Medical Center. Defendants deny all remaining allegations
contained in those paragraphs.
14
15
16
17
39. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,Defendants admit that Plaintiffs employment agreement was amended to reduce Plaintiffs base
compensation and that Plaintiff continued to send and receive written communications to others
regarding his leaves of absence. Defendants deny all remaining allegations contained in those
paragraphs.
19
20
21
40. In response to the allegations contained in paragraph 99, Defendants admit thatPlaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
remaining allegations contained in paragraph 99.
24
25
42. In response to the allegations contained in paragraphs 101 and 102, Defendantsadmit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny
all remaining allegations contained in those paragraphs.
27
4
. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 87 and 88.
38. Defendants deny all the allegations contained in paragraph 93.
41. Defendants deny all the allegations contained in paragraph 100.
3. In response to the allegations contained in paragraph 103, Defendants admit thatPlaintiff has been provided with the information he requested from the County-owned computer
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 17 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
18/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
7
1
2
that was previously assigned to him. Defendants deny all remaining allegations contained in
paragraph 103.
3
5
8
11
13
17
18
23
25
4
44
6
7
4
9
10
12
4
14
15
16
48. In response to the allegations contained in paragraphs 108, 109 and 110,Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
Plaintiffs request for leaves of absence. Defendants deny all remaining allegations contained in
those paragraphs.
19
20
21
22
50. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
others to discuss those subjects. Defendants deny all remaining allegations contained in those
paragraphs.
24
5
26
27
28
52. In response to the allegations contained in paragraphs 120, 121 and 122,Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
Plaintiffs leaves of absence and performance as Chair of the Pathology Department. Defendants
deny all remaining allegations contained in those paragraphs.
. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 104.
5. In answer to the allegations contained in paragraph 105, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
paragraph 105.
46. In response to the allegations contained in paragraph 106, Defendants admit thatPlaintiff requested and received a reduced work schedule. Defendants deny all remaining
allegations contained in paragraph 106.
7. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 107.
49. Defendants deny all the allegations contained in paragraph 111.
1. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 118 and 119.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 18 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
19/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
8
1
3
6
8
10
11
15
16
19
21
24
26
28
2
53
45
5
7
55
9
56
12
13
14
58. In response to the allegations contained in paragraph 136, Defendants admit thatPlaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career
or business opportunities he desires. Defendants deny all remaining allegations contained in
paragraph 136.
17
18
60. In response to the allegations contained in paragraph 138, Defendants admit thatPlaintiffs base compensation as a staff pathologist is less than it was when he was Chair of the
Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.
20
6
22
23
62. In response to the allegations contained in paragraph 145, Defendants admit thatPlaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
Defendants deny all remaining allegations contained in paragraph 145.
25
6
27
6
. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 123.
4. In answer to the allegations contained in paragraph 124, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained inparagraph 124.
. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and128.
. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,133 and 134.
57. Defendants deny all the allegations contained in paragraph 135.
59. Defendants deny all the allegations contained in paragraph 137.
1. Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,143 and 144.
3. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 146 and 147.
4. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 19 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
20/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
9
1
3
5
8
10
12
14
17
19
21
22
26
27
2
65
4
66
6
7
6
9
68
11
6
13
7
15
16
71. In response to the allegations contained in paragraph 161, Defendants admit thatinterpretation of Labor Code 1102.5 is a matter of law. Defendants deny all remaining
allegations contained in paragraph 161.
18
7
20
7
23
24
25
75. In response to the allegations contained in paragraphs 168, 169 and 170,Defendants admit that interpretation of Government Code 12945.2(a)(1) and Title 2 of
California Code of Regulations 7297.7(a) and 7297.2(c) is a matter of law. Defendants deny
all remaining allegations contained in those paragraphs.
28
7
. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 153.
. Defendants incorporate herein, all of their responses to paragraphs 1 through 153,inclusive.
7. In response to the allegations contained in paragraph 155, Defendants admit thatinterpretation of Health and Safety Code 1278.5 is a matter of law. Defendants deny all
remaining allegations contained in paragraph 155.
. Defendants deny all the allegations contained in paragraphs 156, 157 and 158 andfurther deny that Plaintiff has engaged in any whistleblowing activity or is a whistleblower.
9. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 159.
0. Defendants incorporate herein, their responses to paragraphs 1 through 159,inclusive.
2. Defendants deny all the allegations contained in paragraphs 162, 163, 164 and165 and further deny that Plaintiff made any whistleblowing reports.
3. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 166.
74. Defendants incorporate herein, their responses to 1 through 166, inclusive.
76. Defendants deny all the allegations contained in paragraphs 171 and 172.7. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 173.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 20 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
21/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
10
1
3
6
7
9
11
14
15
17
19
22
23
25
27
28
2
78
45
7
8
81
10
8
12
13
83. In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a
question of law. Defendants deny all remaining allegations contained in those paragraphs.
16
8
18
8
20
21
87. In response to the allegations contained in paragraph 194, Defendants admit thatinterpretation of the California Fair Employment and Housing Act is a question law. Defendants
deny all remaining allegations remaining in paragraph 194.
24
8
26
9
. Defendants incorporate herein, their responses to paragraphs 1 through 173,inclusive.
9. In response to the allegations contained in paragraph 175, Defendants admit thatinterpretation of 29 U.S.C. 2611(4)(A)(ii)(I) and 29 U.S.C. 2615(a) is a matter of law.Defendants deny all remaining allegations contained in paragraph 175.
80. Defendants deny all the allegations contained in paragraphs 176, 177 and 178.. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 179.
2. Defendants incorporate herein, their answers to paragraphs 1 through 179,inclusive.
84. Defendants deny all the allegations contained in paragraphs 189, 190 and 191.5. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 192.
6. Defendants incorporate herein, their responses to paragraphs 1 through 192,inclusive.
88. Defendants deny all the allegations contained in paragraphs 195 and 196.9. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 197.
0. Defendants incorporate herein, their responses to paragraphs 1 through 197,inclusive.
91. Defendants deny all the allegations contained in paragraph 199.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 21 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
22/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
11
1
3
5
6
8
10
13
15
17
19
21
23
25
2
92
4
93
7
95
9
96
11
12
97. In response to the allegations contained in paragraph 205, Defendants admit thatinterpretation of the Fourteenth Amendment to the United States Constitution is a question of
law. Defendants deny all remaining allegations contained in paragraph 205.
14
9
16
9
18
10
20
10
22
10
24
10
26
27
28
104. In response to the allegations contained in paragraphs 228 and 229, Defendantsadmit that interpretation of the Code of Federal Regulations, including 20C.F.R. 541.118(1) and
541.18(6), is a question of law. Defendants deny all remaining allegations contained in those
paragraphs.
. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 200.
. Defendants incorporate herein, their responses to paragraphs 1 through 200,inclusive.
94. Defendants deny all the allegations contained in paragraph 202.. Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 203.
. Defendants incorporate herein, their responses to paragraphs 1 through 204,inclusive.
8. Defendants deny all the allegations contained in paragraphs 206, 207, 208, 209,210, 211, 212, 213 and 214.
9. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 215.
0. Defendants incorporate herein, their responses to paragraphs 1 through 215,inclusive.
1. Defendants deny all the allegations contained in paragraphs 217, 218, 219, 220,221, 222, 223, 224 and 225.
2. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 226.
3. Defendants incorporate herein, their responses to paragraphs 1 through 226,inclusive.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 22 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
23/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
12
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
105. Defendants deny all the allegations contained in paragraphs 230, 231 and 232.As and for a first affirmative defense, Defendants allege that Plaintiffs Second
Supplemental Complaint and each and every purported claim contained therein fails to state a
claim upon relief can be granted.As and for a second affirmative defense, Defendants allege that this Court lacks subject
matter jurisdiction over Plaintiffs alleged claims and should refuse to exercise jurisdiction over
Plaintiffs state claims because they predominate and the alleged federal claims are insubstantial.
As and for a third affirmative defense, Defendants allege that Defendants actions as
alleged in the Second Supplemental Complaint were privileged under California Evidence Code
sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections
800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants actions
were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge
of official duties and performed in the course of official proceedings authorized by law and that
Defendants and each of them are, therefore, immune from liability.
As and for a fourth affirmative defense, Defendants allege that California Civil Code
section 47(a) and (b) immunizes Defendants and each of them from liability for the matters
alleged in the Second Supplemental Complaint.
As and for a fifth affirmative defense, Defendants allege 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.
As and for a sixth affirmative defense, Defendants allege that Plaintiffs injuries, as
alleged in the Second Supplemental Complaint occurred more than one year before Plaintiff
commenced this action and that Plaintiffs claims are, therefore, barred by the statue of
limitations established in California Code of Civil Procedures 340.
As and for a seventh affirmative defense, Defendants allege that Plaintiffs injuries, as
alleged in the Second Supplemental Complaint occurred more than two years before Plaintiff
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 23 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
24/42
ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
13
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
commenced this action and that Plaintiffs claims are, therefore, barred by the statue of
limitations established in California Code of Civil Procedures 335.1.
As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
adequate administrative remedies which he failed to exhaust and that his claims are, therefore,barred.
As and for a ninth affirmative defense, Defendants allege that the Defendants and each of
them have qualified immunity for each and every claim alleged in the Second Supplemental
Complaint because, in doing the things alleged, they were each acting within the course and
scope of their duties as public officials and did not violate any of Plaintiffs constitutional rights
and, even if they did, none of the alleged constitutional rights was clearly established.
WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Second
Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
together with such other and further relief as the Court deems just.
Dated: June 20, 2007 LAW OFFICES OF MARK A. WASSER
By: /s/ Mark A. Wasser
Mark A. WasserAttorney for Defendants, County of Kern, et al.
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 24 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
25/42
EXHIBIT 2. Order Denying Motion to Strike (Doc. 64).
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 25 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
26/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 1 -
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,
vs.
COUNTY OF KERN, et al.,
Defendants.
___________________________________/
Case No. 1:07-cv-0026-OWW-TAG
ORDER DENYING MOTION TO STRIKEFIFTH AFFIRMATIVE DEFENSEAND REQUEST FOR SANCTIONS
(Doc. 32)
Plaintiff David F. Jadwin, D.O. has moved to strike the fifth affirmative defense in the
answer to second supplemental complaint filed by defendants County of Kern, Peter Bryan, Irwin
Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy
(collectively, "defendants"), and for sanctions against defendants counsel. (Docs. 31, 32). The
court has read and considered the pleadings, considered the arguments of counsel made at the
motion hearing in this matter, and makes the following ruling.
1. Legal standards.
A party may move to strike any insufficient defense or any redundant, immaterial,
impertinent or scandalous matter. Fed. R. Civ. P. 12(f). For a defense to be deemed
insufficient as a matter of law, the court must be convinced that there are no questions of fact,
that any questions of law are clear and not in dispute, and that under no set of circumstances
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 1 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 26 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
27/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 2 -
could the defense succeed. Galley v. County of San Mateo, 2007 WL 902551, at *1 (N.D.Cal.
March 22, 2007) (citations omitted). Matters are redundant when they are needlessly repetitive
or unrelated to the issues involved in the action. Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 166,
120 n. 4 (D.Puerto Rico 1972)(citations omitted). Immaterial allegations are those that have noessential or important relationship to the claim for relief or the defense being pleaded. Fantasy,
Inc. v. Fogerty, 984 F. 2d 1524, 1527 (9th Cir. 1993), reversed on other grounds, Fogerty v.
Fantasy, Inc. , 510 U.S. 517, 534-535 (1994). Allegations are impertinent when they are
irrelevant to the issues in the case or are otherwise inadmissible. Id. Scandalous matters are
those that reflect cruelly upon a persons moral character, use repulsive language, or detract from
the dignity of the court. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 (D. New Jersey 1984),
overruled on other grounds, Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983).
The purpose of a motion to strike is to avoid litigating spurious issues, and it can operate
as an early challenge to the legal sufficiency of a defense. Fantasy, Inc. v. Fogerty, 984 F. 2d at
1527; California v. United States, 512 F.Supp. 36, 38 (N.D. Cal. 1981). Nevertheless, motions
to strike are generally disfavored and not frequently granted, for three reasons: (1) the liberal
pleading standard in federal practice; (2) they are often deployed as a delay tactic; and (3) the
prevailing view that a case should be tried on the proofs rather than the pleadings. Kaiser
Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.
1982); Bassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (C.D. Cal. 2003); Lazar v. Trans
Union, L.L.C., 195 F.R.D. 665, 669 (C.D. Cal. 2000); see Rennie & Laughlin, Inc. v. Chrysler
Corp., 242 F.2d 208, 213 (9th Cir. 1958).
When considering a motion to strike a defense, the court must view the defense in the
light most favorable to the defendants and resolve any doubt regarding the sufficiency or
relevancy of the challenged defense in the defendants favor. Lazar v. Trans Union LLC , 195
F.R.D. at 669; ); In re TheMart.com, Inc. Securities Litigation, 114 F.Supp.2d 955, 965 (C.D.
Cal. 2000)(citing California v. United States, 512 F.Supp. at 36). Accordingly, a motion to strike
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 2 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 27 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
28/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 3 -
a defense should not be granted unless it can be shown that no evidence in support of the defense
would be admissible or that the defense could have no possible bearing on the issues in the
action. See Gay-Straight Alliance Network v. Visalia Unified School Dist., 262 F. Supp.2d
1088, 1099 (E.D. Cal. 2001)
2. Motion to strike fifth affirmative defense.
Plaintiff's second supplemental complaint alleges eleven state and federal claims against
eight defendants, arising out of plaintiff's employment as a pathologist at Kern Medical Center
(KMC) in Bakersfield, California. (Doc. 30). Defendants answer to the second supplemental
complaint contains nine affirmative defenses. (Doc. 31). The fifth affirmative defense alleges:
As and for a fifth affirmative defense, Defendants allege that, during Plaintiffs
employment at Kern Medical Center, Plaintiff was arrogant, disagreeable,uncooperative, intimidating, overbearing, self-righteous and unfriendly and thatPlaintiffs behavior contributed to and was the direct and proximate cause of anystresses, disabilities or injuries that Plaintiff believes he sustained. (Doc. 31,12:18-22).
Plaintiff has moved for an order striking the fifth affirmative defense from the answer and
awarding sanctions against defendants counsel. (Doc. 32). Plaintiff contends the fifth
affirmative defense is an insufficient defense and a scandalous matter under Rule 12(f) and
should therefore be stricken.
A. Fifth affirmative defense.
Plaintiff characterizes the fifth affirmative defense as contributory negligence and argues
that it is insufficient because contributory negligence is not a defense to any of plaintiffs claims.
Defendants assert that the fifth affirmative defense merely describes plaintiffs behavior at KMC
and alleges that plaintiffs own behavior caused at least some of the hostility in the work
environment that plaintiff complains about.
(a). Hostile work environment allegations.
Plaintiffs complaint alleges that plaintiff worked in a deteriorating pathology
department at KMC for nearly seven years, and that when he complained about it and other
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 3 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 28 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
29/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 4 -
issues, he was defamed, harassed, retaliated and discriminated against, demoted, and subjected to
a hostile work environment. The complaint contains several allegations that plaintiff was
damaged by a hostile work environment and work hostility. These allegations are contained
primarily in the first 152 paragraphs of the complaint, and are incorporated by reference into allof plaintiff's claims.
Plaintiffs complaint includes state law retaliation and discrimination claims wherein he
alleges that he suffered a hostile work environment at KMC. For example, plaintiff alleges that
after he was demoted from head of the pathology department to staff pathologist, he continued
to suffer a hostile work environment and retaliation. (Doc. 30, 9:13-14)(italics added).
Plaintiffs whistleblower claim alleges that in February 2006, he reported his various
[c]oncerns, as well as the retaliation, defamation and hostile work environment [p]laintiff was
experiencing at KMC. (Doc. 30, 13:13-15)(italics added). Plaintiffs discrimination claims
alleges that he notified KMC in 2003 that he suffered from depression due to work-related
hostility and KMCs failure to resolve [p]laintiff's compliance and patient care issues (Doc. 30,
28:18-19), and that by 2005, he was suffering extreme stress from the hostile work environment
created by the harassment, defamation, discrimination, and retaliatory actions of [d]efendants.
(Doc. 30, 28:22-23. 29:1-2)(italics added). Plaintiff also alleges that defendants willfully and
intentionally creat[ed] a hostile work environment, subjecting him to acts of defamation and
ratification thereof, demotion and excessive reduction in pay, disparate treatment, unwarranted
criticism and reprimands, threats, requests for his resignation, interference with and denial of his
right to medical leave, refusing to engage in good faith in an interactive process and denying him
reasonable accommodations and procedural due process because of his protected characteristics
and/or activities alleged herein. (Doc. 30, 33:5-11)(italics added).
(b). The fifth affirmative defense is relevant to plaintiffs claims.
Plaintiffs complaint alleges that he suffered a hostile work environment and seeks
damages as a result under a variety of legal theories, including under FEHA. Non-sexual
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 4 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 29 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
30/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 5 -
harassment hostile environment claims are subject to the same hostile environment analysis
applied to sexual harassment cases, i.e., whether the conduct was so severe and pervasive as to
constitute a hostile work environment. See e.g., Muller v. Automotive Club of Southern
California, 61 Cal. App. 4th 431, 446 (1998), disapproved on other grounds, Colmenares v.Braemar Country Club, Inc., 29 Cal. 4th 1019, 1031 (2003). Plaintiffs hostile work environment
allegations bring into issue the totality of the circumstances of his work environment, which
includes matters such as the conditions of plaintiff's work at KMC, the quality of his work
relationships at KMC, his management of the pathology department, and the link between those
matters and plaintiff's injuries. Each of these issues concerns defendants and plaintiffs behavior
at KMC. The fifth affirmative defense alleges that plaintiff's own behavior caused the problems
he encountered at KMC.
The possibility that plaintiff's own behavior may have been the source of his problems at
KMC is also illustrated by allegations in plaintiff's own complaint. For example, the complaint
alleges that in February 2006, defendant Bryan sent a letter advising plaintiff that your decision
to confront the issues this way is not a good one....It is not your message that people react to but
rather how you deliver it.... (Doc. 30, 21:10-19)(italics added).
(c). Characterization of the fifth affirmative defense.
Plaintiff reads the fifth affirmative defense narrowly and argues that it asserts only
contributory negligence. The court is not persuaded by plaintiff's argument, because it is based on
a faulty premise. 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. The substance of the fifth affirmative defense is that plaintiff's own misconduct
created the situation that resulted in his injuries. 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. Given that the court is obliged to view the fifth
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 5 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 30 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
31/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 6 -
affirmative defense in the light most favorable to defendants and to resolve any doubt regarding
the sufficiency or relevancy of the defense in defendants favor, the court does not subscribe to
plaintiffs narrow interpretation of the defense.
The fifth affirmative defense can be characterized as an assertion of an unclean handsdefense which if proven, closes the doors of a court of equity to one tainted with inequitableness
or bad faith relative to the matter in which he seeks relief, however inappropriate may have been
the behavior of the defendant. Precision Instrument Manufacturing Co. v. Automotive
Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997 (1945). The fifth affirmative
defense can also be characterized as an assertion of an equitable estoppel defense, which
precludes a party from asserting rights he otherwise would have had against another when his
own conduct renders assertions of those rights contrary to equity. Aetna Casualty and Surety
Company v. Jeppeson & Company, 440 F. Supp. 394, 403-404 (D. Nev. 1977)(internal
quotation omitted); Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109
Cal.App. 4th 1705, 1713 (2003)(citation omitted) .
Unclean hands and equitable estoppel are affirmative defenses under federal and state
law, and their application is primarily a question of fact in each case. See Hass v. Darigold Dairy
Products Co., 751 F.2d 1096, 1099 (9th Cir. 1985); Kendall-Jackson Winery, Ltd. v. Superior
Court, 76 Cal.App. 4th 970, 978 (1999); City of Culver City v. State Board of Equalization, 29
Cal. App. 3d 404, 411(1972. The court has found no case law to suggest that the defenses of
unclean hands and equitable estoppel are inapplicable in the context of at least some of plaintiff's
claims, including the 1983 claim.
Moreover, this action is in the early stages of discovery. It is possible that defendants
may prove a set of facts in which plaintiffs behavior created the hostile work environment from
which at least some of his damages arise. After viewing the fifth affirmative defense in the light
most favorable to defendants and resolving any doubt regarding the sufficiency or relevancy of
the defense in defendants favor, the court is not convinced that there are no facts to support the
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 6 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 31 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
32/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 7 -
fifth affirmative defense or that under no set of circumstances could the defense succeed.
Accordingly, the court concludes that the fifth affirmative defense is legally sufficient and that an
order striking the defense is not warranted at this time. The motion to strike the defense on the
ground that it is legally insufficient is denied without prejudice to plaintiff's right to seek thesame relief after discovery and development of the evidence.
B. Scandalous matter.
Plaintiff contends the fifth affirmative defense is a scandalous matter and should be
stricken because it alleges that plaintiff was arrogant, disagreeable, uncooperative, intimidating,
overbearing, self-righteous and unfriendly. Plaintiff contends these contentions assert offensive
character defects and are a pretextual reason for defendants' wrongful conduct towards plaintiff.
The court has considered the content, nature, and context of the fifth affirmative defense.
The defense describes plaintiffs alleged behavior during his employment at KMC, which if
proven, is neither admirable nor cruelly derogatory. Plaintiff makes similar, if not harsher,
statements regarding the behavior of defendant Roy, who is also KMC physician. For example,
plaintiff alleges that in March 2006, he reported to KMCs chief executive officer that defendant
Roy has made outrageous false statements about the pathology department and myself, which
cause great concern about his ethical integrity....I think it is outrageous that the medical staff sits
by and lets this individual act in such a pompous, destructive manner. I feel a personal duty to
the pathology department (and the hospital) to push the issue of his bad conduct in whatever
venue may be needed to control the actions of this individual. (Doc. 30, 22:1-5)(italics added).
Pompous is synonymous with overbearing. Thus, at least one of the words that plaintiff uses to
describe a defendants behavior is nearly identical to the word that plaintiff considers
scandalous when it is used to describe his own behavior.
The court is not persuaded by plaintiffs argument. The fifth affirmative defense does not
reflect cruelly on plaintiffs character, does not use repulsive language, and is not sufficiently
derogatory or degrading to constitute a scandalous matter within the meaning of Rule 12 of the
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 7 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 32 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
33/42
1
2
3
45
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 - 8 -
Federal Rules of Civil Procedure. The motion to strike the defense as a scandalous matter is
denied.
3. Motion for Sanctions.
Plaintiff requests that the court award sanctions against defendants attorney because,according to plaintiff, there is no basis in law or fact to support the fifth affirmative defense. Fed.
R. Civ. P. 11 (c ). As discussed above, the fifth affirmative defense is legally sufficient and will
not be stricken at this time. The court concludes that defendants attorney has not asserted a
frivolous defense or falsely certified defendants answer to the complaint, and the court is
persuaded by Attorney Wassers declaration that defendants have a good faith belief in the
factual basis for the fifth affirmative defense. Sanctions are not warranted and plaintiffs request
for sanctions is denied.
ORDERS
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to strike the fifth affirmative defense is DENIED without prejudice,
and plaintiffs request for sanctions is DENIED. (Doc. 32).
IT IS SO ORDERED.
Dated: October 23, 2007 /s/ Theresa A. Goldnerj6eb3d UNITED STATES MAGISTRATE JUDGE
Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 8 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 33 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
34/42
EXHIBIT 3. Plaintiffs Reply to Opposition to Motion to Strike (Doc. 45).
Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 34 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
35/42
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE 1
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
27
28
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]
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 Plaintiff
DAVID F. JADWIN, D.O.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID F. JADWIN, D.O.,
Plaintiff,
v.
COUNTY OF KERN; et al.
Defendants.
Civil Action No. 1:07-cv-00026-OWW-TAG
PLAINTIFFS REPLY TO OPPOSITIONTO MOTION TO STRIKE FIFTHAFFIRMATIVE DEFENSE
Date: August 13, 2007Time: 9:30 a.m.Place: U.S. Bankruptcy CourtBakersfield Courtroom 8
Date Action Filed: January 6, 2007Date Set for Trial: August , 2008
Plaintiff respectfully submits his reply to Defendants Opposition to the Motion to Strike the
Fifth Affirmative Defense, (FAD) which states:
As and for a fifth affirmative defense, Defendants allege that, during Plaintiffsemployment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,intimidating, overbearing, self-righteous and unfriendly and that Plaintiffs behaviorcontributed to and was the direct and proximate cause of any stresses, disabilities orinjuries that Plaintiff believes he sustained. Answer, 12:15-22.
A. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS INSUFFICIENTA plaintiffs contributory negligence is not a defense to an intentional tort. Godfrey v. Steinpress
Case 1:07-cv-00026-OWW-TAG Document 45 Filed 08/06/2007 Page 1 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 35 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
36/42
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE 2
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
27
28
(1982) 128 Cal.App.3d 154; Weidenfeller v. Star & Garter(1991) 1 Cal.App.4th 1. Nor is it a defense to
strict liability causes of action.
1. Defendants Concede that Contributory Negligence is Irrelevant Here.Defendants have expressly admitted in the Opposition that [this action] is not a traditional
negligence case and contributory negligence is not a relevant concept. Opposition, 4:24-25
(emphasis added). Nonetheless, Defendants still argue in the Opposition that this Court should not strike
their Fifth Affirmative Defense (FAD) because Plaintiffs behaviorcontributed to hostility in the
work environment. Opposition, 6:11-12 (emphasis in original). In their Answer, Defendants avoid
labeling their Fifth Affirmative Defense as one of Comparative Negligence, but a plain reading of
Defendants arguments reveals it as such.
In fact, Defendants have expressly admitted that the FAD articulates a comparative negligence1
defense. In an email to Plaintiffs counsel dated May 9, 2007, Mr. Mark Wasser, counsel of record for
Defendants, stated as follows:
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. We can discuss this, too, if you want.Exhibit 1, Lee Decl. at 4 (emphasis added).
Hence, by Defendants own admission, the FAD is legally insufficient because this action is nota traditional negligence case, contributory negligence does not apply and the legal basis for the FAD is
comparative negligence.
2. Contrary to Defendants Contention, Plaintiffs Allegations of General Damages AreDirectly Related to Plaintiffs Statutory Claims
Defendants contend that Plaintiffs allegations of non-economic damages, such as emotional
distress, anxiety, humiliation, and loss of reputation [are] distinctly unrelated to Defendants alleged
failure to comply with CFRA, FMLA or other statutes Plaintiff cites and that they therefore constitute
generic personal injury claims to which the FAD applies. Opposition, 8:6-8 (emphasis added).
1 Contributory negligence and comparative negligence are used interchangeably here because both constitute affirmativedefenses to negligence-based causes of action, not causes of action based on strict liability or intentional tort as Plaintiff isasserting without exception in this action. See Motion to Strike, 3:21.5 7:5, for an exhaustive discussion. It should furtherbe noted that, in any case, the FAD on its face fails to properly articulate a comparative/contributory negligence defense;hence, Defendants have waived it.
Case 1:07-cv-00026-OWW-TAG Document 45 Filed 08/06/2007 Page 2 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 36 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
37/42
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE 3
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
27
28
This is incorrect Plaintiffs allegations of general damages are directly related to the remedies
provided by the statutes that he alleges Defendants violated. In fact, the FEHA and CFRA2 specifically
permit recovery for general damages.
The California Supreme Court held in State Personnel Bd. v. Fair Employment & Housing Com.,
that these same remedies [authorized under Cal. Govt. C. 12970 (damages for emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses)]
along with compensatory and punitive damages, may be awarded by a superior court in a private
enforcement action under the FEHA. 39 Cal. 3d 422, 433-434 (Cal. 1985).
Similarly, the California Court of Appeal has held:
In a civil action under the FEHA, at least, an injured employee is entitled to all reliefgenerally available in noncontractual actions, including punitive damages . . . . It issettled that employment discrimination . . . can cause emotional distress and that suchdistress is compensable under traditional theories of tort law.Murillo v. Rite Stuff Foods, 65 Cal. App. 4th 833, 848 (Cal. Ct. App. 1998) (citationsomitted).
3. Contrary to Defendants Contention, Contributory/Comparative Negligence Is Not ADefense in Strict Liability Cases
Defendants further contend that Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322 (1978) stands
for the proposition that evidence of a partys own behavior is relevant even in strict liability cases.
Opposition, 8:12-13. The case is utterly inapposite. There, the California Supreme Court considered the
issue of how to apportion liability between co-defendant joint tortfeasors, one of which had been
found strictly liable and the other both negligent and strictly liable. The court concluded that it was
appropriate to apply comparative fault apportionment of liability between the co-defendants according to
the jurys determination.Id. at 331-32. Safeway Stores in no way stands for the proposition that a
plaintiffs contributory or comparative negligence is relevant even in strict liability cases.Id.
Not only have Defendants insisted on re-litigating the well-settled proposition that a plaintiffs
contributory negligence is not an affirmative defense to an intentional tort or strict liability actions, in
doing so they have made incorrect and misleading representations about the law to this Court.
2 CFRA is a part of the FEHA and subject to the same remedies.
Case 1:07-cv-00026-OWW-TAG Document 45 Filed 08/06/2007 Page 3 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 37 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
38/42
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE 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
27
28
For the foregoing reasons, Defendants FAD should be stricken as legally insufficient.
B. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS SCANDALOUSUnder Rule 26, affirmative defenses which are legally sufficient may still be stricken if they are
redundant, immaterial, impertinent, or scandalous. SEC v. Gulf & Western Industries, Inc. 502 F.Supp
343, 345 (D.D.C. 1980).
Plaintiffs Motion contends that the FAD is scandalous and cites Skadegaard v. Farrell 578
F.Supp. 1209, 1221 (D.N.J. 1984) for its holding that scandalous allegations are those that cast a
cruelly derogatory light on a party or other person. Motion, 7:8.5-8.5.3Skadegaardfurther established
that allegations must be neither (1) unnecessarily derogatory nor (2) irrelevant.Id. at 1221.
1. The Fifth Affirmative Defense Is Unnecessarily DerogatoryThe Opposition states Nothing in the defense attacks Plaintiffs character or competence.
Opposition, 6:10; see alsoId. at 7:10. Defendants further argue that the FADs allegations that Plaintiff
was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly
describe Plaintiffs behavior and not his character. Opposition, 6:11-15. This erstwhile distinction is
belied by the syntax of the FAD: [. . . ] Defendants allege that [. . .] Plaintiffwas arrogant,
disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly and that
Plaintiffs behavior) (emphasis added). The FAD itself contradicts Defendants assertion that the
mal-adjectives at issue in the first clause relate to behavior rather than character.
The first clause of the FAD constitutes a purely gratuitous attack on Plaintiffs character. It is
unnecessarily derogatory and is therefore scandalous.
2. The Fifth Affirmative Defense Is Irrelevant4The FAD is an ex post facto pretext manufactured by Defendants to explain their adverse actions
against Plaintiff and is irrelevant to this action.
3 The Opposition contends that Skadegaard[does] not support [Plaintiffs] position. Opposition, 6:16. Yet, the Oppositionthen cites Skadegaard for the same proposition as Plaintiff, its holding that an attack on a partys moral character isscandalous if it is degrading and irrelevant. Opposition, 7:4-6.4 Plaintiff challenges the FAD not on the grounds that it is immaterial, but on the grounds that it is insufficient andscandalous. Nevertheless, Defendants raise the issue of immateriality sua sponte. The Opposition states: immaterialmatter is that which has no essential or important relationship to the claim. Opposition, 4:5-10, citing Fantasy, Inc. v.Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993).
Case 1:07-cv-00026-OWW-TAG Document 45 Filed 08/06/2007 Page 4 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 38 of 42
8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS
39/42
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE 5
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
27
28
Defendants citeRDF Media Ltd. v. Fox Broadcasting Co.as an example where the court struck
scandalous allegations from a complaint. There, the court reasoned that the plaintiff had quoted sharp
words from newspaper articles to lend credence to the opinions of commentators and give the
appearance that such opinions are legally relevant to the dispute. Opposition, 7:12-19, citingRDF
Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556.
Here, the converse applies. In alleging the FAD, Defendants omitted quotations from any
contemporaneous employee performance reviews that might substantiate their derogatory attack on
Plaintiffs character. Opposition, 7:12-19, citing RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp.
2d 566 (C.D. Cal. 2005). This is because, a