United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S REQUEST TO MODIFY THE
PRETRIAL ORDER (ECF No. 83)
S. Austin United States Magistrate Judge.
Burnett (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. This case now proceeds on Plaintiff's original
Complaint filed on November 3, 2016, against defendants
Correctional Officer (C/O) G. Meier, C/O R. Reynaga, C/O C.
Huckleberry, and Sergeant G. Garcia
(“Defendants”), for use of excessive force in
violation of the Eighth Amendment. (ECF No. 1.)
case is scheduled for jury trial to commence on July 16,
2019, at 8:30 a.m. before the Honorable Lawrence J.
3, 2019, the court issued a pretrial order under Federal Rule
of Civil Procedure 16(e) that identified all the witnesses
and trial exhibits that the parties would be permitted to
call to testify, or introduce into evidence at trial. (ECF
No. 64.) The court's pretrial order indicates that
Plaintiff's only witness is Plaintiff himself.
(Id. at 10:4-5).
pretrial order contained the following provision regarding
Any party may, within ten (10) calendar days after the date
of service of this Order, file and serve written objections
to any of the provisions of this Order. Such objections shall
specify the requested modifications, corrections, additions,
(ECF No. 64 at 16 ¶ XXV.) Pursuant to Federal Rule of
Civil Procedure 16, the final pretrial order shall control
the subsequent course of this action and will not be modified
except according to its terms, or to prevent manifest
injustice. Fed R. Civ. P. 16(e). Neither party objected to
the pretrial order.
26, 2019, Plaintiff filed a document titled
“Injunction, ” which the court construes as a
request to modify the court's pretrial order to add 9 new
witnesses: (1) Gary Meier; (2) Ruben Reynaga; (3) Chad
Huckleberry; (4) Gabriel Garcia; (5) Kristyn Sedillo; (6)
Rhonda Davidson; (7) Ryan Dyer; (8) Onifimo Rufino; and (9)
Chris Lesniak. (ECF No. 83.)
district court has issued a final pretrial order,
modifications are permitted “only to prevent manifest
injustice.” Fed.R.Civ.P. 16(e). “The purpose of
[the final pretrial] order is to guide the course of the
litigation, ” and “[o]nce formulated, [it] should
not be changed lightly[.]” Id. at advisory
committee's note (citing Clark v. Pa. R.R. Co.,
328 F.2d 591 (2d Cir. 1964)). The Ninth Circuit has stressed
the crucial role played by pretrial orders “in
implementing the purposes of the Federal Rules of Civil
Procedure ‘to secure the just, speedy, and inexpensive
determination of every action.'” United States
v. First Nat'l Bank of Circle, 652 F.2d 882, 886
(9th Cir. 1981) (quoting Fed.R.Civ.P. 1). District courts
have “broad discretion to manage discovery and to
control the course of litigation under [Rule] 16.”
Avila v. Willits Envtl. Remediation Trust, 633 F.3d
828, 833 (9th Cir. 2011).
Ninth Circuit has outlined four factors district courts
should consider when determining whether to modify the final
pretrial order: (1) the degree of prejudice or surprise to
the non-moving party if the order is modified; (2) the
ability of the non-moving party to cure any prejudice; (3)
the impact of the modification on the orderly, 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. 1981).
The moving party must demonstrate that considering these
factors, manifest injustice would result if the order is not
modified. Id. That has not been demonstrated here.
Plaintiff has not given any explanation why these 9 witnesses
are necessary or why “manifest justice” will
result if the pretrial order is not modified, nor has
Plaintiff offered any justification for allowing the addition
of witnesses on the eve of trial. Therefore, Plaintiff's
request shall be denied.
is, however, not precluded from cross-examining any of these
9 witnesses who may be called at trial by Defendants after
defense counsel has completed direct examination of each
witness because the 9 witnesses on Plaintiff's list are
also listed on Defendants' list of witnesses in the
pretrial order. Fed.R.Evid. 611(b).