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Tumbling v. Merced Irrigation Dist.

October 21, 2010

LAMONTE TUMBLING, PLAINTIFF,
v.
MERCED IRRIGATION DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING DEFENDANT'S MOTION FOR SANCTIONS TO EXCLUDE TESTIMONY OF CONNIE PERAINO FROM TRIAL (Document 120)

On October 6, 2010, Defendant Merced Irrigation District ("MID") filed the instant motion for evidentiary sanctions to prevent introduction of testimony from Connie Peraino at trial in this matter. On October 15, 2010, Plaintiff LaMonte Tumbling ("Plaintiff") filed his opposition. MID filed a reply on October 18, 2010. The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g) and vacated the October 22, 2010 hearing.

BACKGROUND

Plaintiff filed the instant employment discrimination action against MID on November 21, 2008. Pursuant to a Scheduling Order, non-expert discovery closed on February 15, 2010.

On July 22, 2010, MID filed a motion for summary judgment.

On August 9, 2010, Plaintiff served MID with his Second Amended Initial Disclosures in which he identified Connie Peraino, a former MID employee, as a witness in support of his case-in-chief. Plaintiff also served MID with a copy of Ms. Peraino's declaration ("Peraino Declaration"), which was dated August 7, 2010. In the declaration, Ms. Peraino reported that on occasions during her employment at MID she heard Jem Brown use racially charged language, including the word "nigger." She also indicated that other employees, supervisors and managers would occasionally use the word "nigger" in the office environment and it seemed to be an accepted practice. Peraino Declaration at ¶¶ 4-5.

On August 31, 2010, Plaintiff included the Peraino Declaration in opposition to MID's motion for summary judgment. (Doc. 11-8). MID filed objections and sought an order pursuant to Fed. R. Civ. P. 37 prohibiting the admission of the Peraino Declaration due to untimely disclosure.

On September 27, 2010, the Court issued its order on MID's motion for summary judgment. (Doc. 119). As to the parties' objections, the Court stated as follows:

The parties have filed numerous objections to the evidence submitted by the opposing side. The court has not relied on any of the disputed evidence to grant or to deny summary judgment. Where the Court has denied summary judgment as to the claims, the Court found triable issues exist regarding the employment decisions. The Court has granted summary judgment as to the statute of limitations because plaintiff failed to meet his burden under either claim, as explained in the body of the order. To the extent that the court may have considered some of the disputed evidence in finding that triable issues exist regarding the claims, the objections are OVERRULED. Further, the court is not obligated to consider matters not specifically brought to its attention. Thus, it is immaterial that helpful evidence may be located somewhere in the record. The motion and opposition must designate and reference specific triable facts. Carmen v. San Francisco Unified School Dist. , 237 F.3d 1026, 1029 (9th Cir. 2001). (Doc. 119, pp 1-2, n. 1) (Emphasis added).

In denying MID's motion for summary judgment on Plaintiff's race discrimination claims, the Court found that Plaintiff had presented evidence "that there [were] some racially charged words used by supervisors at MID . . . [and] that plaintiff has been referred to as . . . possibly 'nigger.'"*fn1 (Doc. 119, p. 15). The Court cited Plaintiff's separate statement of disputed facts, numbers 165-186, which included Ms. Peraino's declaration regarding use of the word "nigger." (Doc. 110-1, Disputed Facts #165-169).

MID is now seeking to preclude introduction of Ms. Peraino's testimony at trial as an evidentiary sanction pursuant to Fed. R. Civ. P. 37.

DISCUSSION

A. Modification of the Scheduling Order

MID asks the Court to modify the scheduling order and decide this non-dispositive motion after ...


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