Chopourian v. Catholic Healthcare West et al
Filing
145
ORDER and ORDER to SHOW CAUSE signed by Judge Kimberly J. Mueller on 11/10/2011. Defendant's Brief on impact of scope of EEOC Complaint is due 11/18/2011 with Opposition due on 11/30/2011. Argument is SET set for 12/7/2011 at 10:00 AM in Courtroom 3 (LJM). Trial set for 1/23/2012 at 9:00 AM in Courtroom 3. Attorney Martin directed to SHOW CAUSE within 14 days of date of Order whey she should not be sanctioned. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANI CHOPOURIAN,
Plaintiff,
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Civ. No. S-09-2972 KJM KJN
vs.
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ORDER AND ORDER TO
SHOW CAUSE
CATHOLIC HEALTHCARE WEST,
et al.,
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Defendants.
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On November 8, 2011, the court heard argument on the parties’ motions in
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limine. Lawrence A. Bohm and Erika M. Gaspar appeared for plaintiff; Judith Clark Martin and
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David Ditora appeared for defendant.
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I. Briefing Schedule
The court sets the following schedule for further briefing on the question raised
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by defendant’s motion in limine no. 6 regarding the relationship between the specificity of
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plaintiff’s complaint to the EEOC and the causes of action in the second amended complaint.
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Defendant’s brief is due by November 18, 2011 with the opposition due by November 30.
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Argument on the motion is set for December 7, 2011 at 10:00 a.m.
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II. Order to Show Cause
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As the court noted at hearing, defendant’s motion in limine no. 6, as well as
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defendant’s motions in limine nos. 3 and 7 and portions of no. 12 are substantive motions,
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brought in the guise of motions in limine. The Pretrial Scheduling Order issued in this case on
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February 26, 2010 cautioned counsel that “an untimely motion characterized as a motion in
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limine may be summarily denied. A motion in limine addresses the admissibility of evidence.”
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ECF No. 20 at 2. Another court has rejected the use of such motions as “preemptive weapons
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. . . which . . . endeavor to strike in shotgun fashion at whole topics and sources of prospective
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evidence . . .” and, as such, “would effectively serve as a form of advance trial of substantive
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portions of the case, or indeed as a substitute for the trial itself.” TVT Records v. Island Def Jam
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Music Group, 250 F.Supp.2d 341, 344 (S.D.N.Y. 2003); see also Henderson v. Peterson, 2011
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WL 2838169, at *11 (N.D. Cal. July 15, 2011) (finding issue of exhaustion waived when it was
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not raised in a 12(b) motion). In this case, defendant’s motions identified in this paragraph
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sought resolution of “substantive portions of the case” and thus were not properly brought as
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motions in limine. While the court could have summarily denied the motions, they raise
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potential jurisdictional issues the court has determined it must resolve before trial. Therefore,
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the court has vacated the trial date on short notice, so that the motions can be properly resolved.
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In light of the foregoing, attorney Martin is directed to show cause within
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fourteen days of this order why she should not be sanctioned in the amount of $999.00 for filing
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motions in limine as substantive motions, filed well past the deadline for filing of such motions.
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III. New Trial Date
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Plaintiff’s counsel has informed the court that one of his witnesses will be
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unavailable because of medical reasons beginning in February 2012. Accordingly the court
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sought to confirm a new trial date in January consonant with its heavily impacted calendar.
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Attorney Martin represented, however, that she had a conflict with trial being set in January and
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moreover that she is the only person who could try the case. The court notes, however, that
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Attorney Ditora, an experienced civil litigator, has joined the defense team. In the absence of a
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declaration from her client that Attorney Martin is in fact the only person who can try the case,
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the court sets trial for Monday, January 23, 2011 at 9:00 a.m.
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IT IS THEREFORE ORDERED THAT:
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1. Defendant’s brief on the impact of the scope of the EEOC complaint on this
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case is due November 18, 2011, with opposition due November 30, 2011; argument is set for
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December 7, 2011 at 10:00 a.m.
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2. Trial is set for January 23, 2012 at 9:00 a.m.
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3. Attorney Martin is directed to show cause within fourteen days of the date of
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this order why she should not be sanctioned.
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DATED: November 10, 2011.
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UNITED STATES DISTRICT JUDGE
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