Wade v. Fresno Police Department et al
Filing
83
ORDER for Additional Briefing to be Filed by December 9, 2011, signed by Chief Judge Anthony W. Ishii on 11/21/2011. Surreply due by 12/9/2011. (Flores, E)
<![CDATA[
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT FOR THE
8
EASTERN DISTRICT OF CALIFORNIA
9
10
11
12
13
14
15
)
)
Plaintiff,
)
)
v.
)
)
FRESNO POLICE DEPARTMENT,
)
et al.,
)
)
Defendants.
)
)
____________________________________)
DEON WADE,
1:09-CV-0599 AWI-BAM
ORDER FOR ADDITIONAL
BRIEFING TO BE FILED BY
DECEMBER 9, 2011
16
17
Currently pending before the Court is Defendants’ motion for summary judgment. In
18
Defendants’ reply in support of their motion, they request that the Court strike two declarations
19
pursuant to Federal Rule of Civil Procedure 37(c)(1).1 See Court’s Docket Doc. No. 79 at p. 2.
20
The declarations at issue were filed as exhibits to Plaintiff’s opposition brief, and purport to be
21
made by Lamont White and Camilla/Camella Jones,2 witnesses to the events alleged in Plaintiff’s
22
complaint. See id. at Doc. No. 78. Defendants argue that Plaintiff failed to identify the
23
24
1
25
26
Although Defendants designate their argument a “Motion to Strike the Declaration of Lamont W hite and
C. Jones,” the Court will construe it as part of Defendants’ argument in support of their motion for summary
judgment. The motion to strike was not docketed as a separate motion and, therefore, Plaintiff, who is proceeding
pro se, was likely unaware that he was entitled, under Local Rule 230(l) (Fed. R. Civ. P. 78), to respond to the
motion within 21 days from service.
27
2
28
The Jones declaration is handwritten and somewhat difficult to read. The declarant’s first name appears to
be spelled “Camella” in the introductory paragraph, and “Camilla” in the signature block.
1
witnesses and disclose their declarations and contact information in discovery, or failed to
2
supplement his discovery responses when he learned of such information. During Plaintiff’s
3
deposition on September 17, 2010, he testified that he no longer had a friendship with Lamont
4
White, no longer communicated with Mr. White, and did not know where Mr. White resided.
5
See Pl.’s Depo. at 76:9-15. Plaintiff was also asked if he knew of any witnesses who saw what
6
happened. Id. at 98:19-20. Plaintiff identified only “Shamika” and “a little kid” named “Augie.”
7
Id. at 98:21, 99:13-21. Defendants also propounded special interrogatories requesting that
8
Plaintiff identify all documents and individuals with knowledge of the facts supporting his
9
contentions. See Suppl. Camarena Decl., Ex. I. On November 30, 2010, Plaintiff responded to
10
each special interrogatory as follows: “After a reasonable search and diligent inquiry,
11
Responding Party does not have information responsive to this request.”
12
Nevertheless, Plaintiff attached to his opposition brief the White declaration, dated
13
October 27, 2010, and the Jones Declaration, dated December 7, 2010. See Doc. No. 78, Exs. A,
14
G. Federal Rule of Civil Procedure 26(a) requires initial witness disclosures, and Rule 26(e)
15
requires that a party supplement his initial disclosures and discovery responses if he learns that in
16
some material respect the disclosure or response is incomplete or incorrect. Rule 37(c)(1)
17
provides: “If a party fails to provide information or identify a witness as required by Rule 26(a)
18
or (e), the party is not allowed to use that information or witness to supply evidence on a motion,
19
at a hearing, or at trial, unless the failure was substantially justified or is harmless.”
20
The Court believes that Plaintiff is entitled to respond to Defendants’ arguments with
21
additional briefing on the issue of whether his failure to disclose the declarations and witness
22
information was substantially justified or was harmless. The court will take this issue under
23
submission and thereafter issue its decision on Defendants’ motion for summary judgment.
24
25
26
Accordingly, the court ORDERS that:
1.
On or before December 9, 2011, Plaintiff SHALL provide Defendants
27
28
2
1
with contact information for Mr. White and Ms. Jones; and
2
2.
On or before December 9, 2011, Plaintiff SHALL file a surreply to address
3
the issue of whether his failure to disclose the White and Jones
4
declarations and witness contact information to Defendants was
5
substantially justified or was harmless.
6
3.
Plaintiff is forewarned that if he does not file a surreply by December 9,
7
2011, the Court will strike the White and Jones Declarations and will
8
thereafter issue its decision on Defendants’ motion for summary judgment.
9
IT IS SO ORDERED.
10
11
Dated:
0m8i78
November 21, 2011
CHIEF UNITED STATES DISTRICT JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
