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Andrew R. Lopez v. S. Cook

March 27, 2011

ANDREW R. LOPEZ, PLAINTIFF,
v.
S. COOK, ET AL., DEFENDANTS.



ORDER

This matter comes before the court upon plaintiff's request for leave to add witnesses and call dismissed defendants to testify (ECF 280) and plaintiff's filing of his trial brief. (ECF 277.) The court DENIES these requests and STRIKES portions of plaintiff's trial brief. Additionally, the court enters a limiting order as described below.

I. Plaintiff's Request for Leave to Add Witnesses and Call Dismissed Defendants to Testify The court will modify its final pretrial order "only to prevent manifest injustice."

FED. R. CIV. P. 16(e).*fn1 "The district court should consider four factors in determining whether tomodify the parties' pretrial order: (1) the degree of prejudice or surprise to the defendants if the order is modified; (2) the ability of the defendants to cure any prejudice; (3) the impact of the modification on the orderly and efficient conduct of the case; and (4) any degree of willfulness or bad faith on the part of the party seeking the modification." Byrd v. Guess, 137 F.3d 1126, 1132 (9th Cir. 1998). Under the present circumstances, for the reasons discussed below, it would be a manifest injustice to modify the final pretrial order. The pretrial order and final pretrial order listed witnesses the parties intended to call and the pretrial order, as adopted by the final pretrial order, specifically informed the parties that A. No other witness will be permitted to testify unless:

(1) The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not be reasonably anticipated at the pretrial conference, or

(2) The witness was discovered after the pretrial conference and the proffering party makes the showing required in "B," below.

B. Upon the post pretrial discovery of witnesses, the party shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so that the court may consider at trial whether the witnesses shall be permitted to testify. The witnesses will not be permitted unless:

(1) The witnesses could not reasonably have been discovered prior to pretrial;

(2) The court and opposing party were promptly notified upon discovery of the witnesses;

(3) If time permitted, the party proffered the witnesses for deposition;

(4) If time did not permit, a reasonable summary of the witnesses' testimony was provided to the opposing party. (ECF 257 at 10.)

The proffered testimony of Doctor Dhillon and William Tucker (P-29461) is wholly irrelevant to the claims proceeding to trial, which the court finds unnecessary to detail here. Additionally, there is no indication these "witnesses" could not have been discovered prior to pretrial.

Furthermore, it is not the court's responsibility to provide plaintiff with the contact information for dismissed defendants he seeks to call to testify, as plaintiff previously has been advised. (ECF 263 at 11.) Plaintiff's request for contact information also is untimely as a discovery request. Plaintiff's request for an extension of time to serve these individuals and for postponement of the trial date is DENIED.

II. Plaintiff's Trial Brief

Plaintiff filed a 43-page trial brief with this court on March ...


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