Julian III Flores et al v. FCA US LLC

Filing 52

ORDER Granting Request to Amend the Witness List Set Forth in the Pretrial Order, signed by Magistrate Judge Jennifer L. Thurston on 6/27/2019. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIAN III FLORES and
ALEJANDRA FLORES ,
Plaintiffs,

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ORDER GRANTING REQUEST TO AMEND THE
WITNESS LIST SET FORTH IN THE PRETRIAL
ORDER

v.
FCA US LLC,
Defendant.

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Case No.: 1:17-cv-00427 JLT

Recently, the Court issued the pretrial order in this case. (Doc. 48). In the order, the Court, for

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the third time, took exception to plaintiffs’ counsel failure to identify witnesses by name. Id. at The

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Court noted,

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Plaintiffs also identified “FCA’s Person Most Knowledgeable” and “Lampe Chrysler
Dodge Jeep Ram’s Person Most Qualified, Lampe CDJR, 3460 Naglee Road, Tracy,
CA” as witnesses, and this is now the third time counsel has failed to identify the
specific person at the relevant dealership by name. (See Durham v. FCA US LLC, Case
No. 2:17-cv-00596 JLT [Doc. 53 at 17]; Celestine v. FCA US LLC, Case No.: 2:17-cv00597 JLT [Doc. 54 at 9]) Previously, the Court admonished the plaintiff’s counsel that
if he again failed to identify this witness by name, “the Court will strike the witness
unless the person is identified by name or there is a showing that the plaintiff does not
know the person’s name.” (Celestine, Doc. 54 at 9, n.1) Once again, Plaintiffs’ counsel
offered no explanation why this person’s name was not included in the joint pretrial
report. Doubling down, now plaintiff’s counsel fails to identity who the “FCA’s Person
most Knowledgeable.” Not only does this not comply with the Court’s Local Rules,
trial is not a deposition and, even if it were, plaintiff’s counsel would have been
obligated to identify the categories about which the witness would testify to allow FCA
to determine who the proper witness would be. Accordingly, the Court accepts this as
an admission that neither witness has any substantive information to add to the trial
issues and neither will be permitted to testify at trial absent a showing of manifest
injustice.
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Id. at 10. The order continued in relevant part,
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The court does not allow undisclosed witnesses to be called for any
purpose, including impeachment or rebuttal, unless they meet the following criteria:
[¶]
b. The witness was discovered after the pretrial conference and the
proffering party makes the showing required in paragraph 3, below
3. Upon the post pretrial discovery of any witness a party wishes to present at
trial, the party shall promptly inform the court and opposing parties of the existence of
the unlisted witness, so the court may consider whether the witness will be permitted to
testify at trial. The witness will not be permitted unless:
a. The witness could not reasonably have been discovered prior to the
discovery cutoff;
b. The court and opposing parties were promptly notified upon
discovery of the witness;
c. If time permitted, the party proffered the witness for deposition; and
d. If time did not permit, a reasonable summary of the witness’s
testimony was provided to opposing parties.

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Id.

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Without acknowledging the standards needed to amend the pretrial order and without

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attempting to meet those standards, plaintiff’s counsel filed “objections” to the pretrial order

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identifying the specific people associated with the descriptors previously provided and stating,

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1. Lampe Chrysler Dodge Jeep Ram’s Person Most Qualified- James Steelman,
Lampe CDJR, 3460 Naglee Road, Tracy, CA: Plaintiffs had not taken the deposition of
the Lampe Chrysler Dodge Jeep Ram and were unable to identify Lampe CDJR’s PMQ
until it was just recently disclosed to Plaintiffs.

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2. FCA US LLC’s Person Most Knowledgeable: Plaintiffs identified Mike
McDowell in its Joint Pretrial Statement that was filed in November 2018. The day the
Joint Pretrial Statement was filed with the Court on June 10, 2019, Defendants removed
Mike McDowell’s name from the Pretrial Statement as they intended to produce
someone other than Mr. McDowell for trial. Defendants never added another witnesses
name to replace Mr. McDowell. After the Pretrial Trial Conference, FCA notified
Plaintiffs that FCA’s Person Most Knowledgeable (“PMK”) would be Tina Dietrich.
FCA’s PMK was not deposed in this matter so Plaintiffs were unable to confirm who
FCA’s Person Most Knowledgeable was without identification from the Defendant.

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Plaintiffs and its counsel will be substantially prejudiced if they are unable to
call FCA’s PMK in its case in chief.

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Missing from this statement is an explanation why counsel failed to identify the Lampe employee

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earlier in the litigation, given the fact that plaintiffs’ counsel has identified the “person most qualified”

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at the specific dealer at issue in each of the other two cases cited above. Seemingly, calling a person of

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this ilk is standard in every case. Thus, it boggles the mind that counsel waits until after the pretrial

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conference to attempt to identify this key witness.
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This is true also as to FCA’s corporate witness. Plaintiffs’ counsel has listed “FCA’s Person

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Most Knowledgeable” in each of the earlier two cases noted here, though counsel has identified the

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specific person who would testify before. When counsel met and conferred to develop the joint pretrial

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statement, this would have been an ideal time to inquire who FCA would produce. Nevertheless,

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plaintiffs’ counsel fails to offer any explanation why this did not occur or, if it did, FCA’s response.

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In short, the Court finds the plaintiffs counsel has failed utterly to demonstrate that the failure to

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list the witnesses was due to any inability to identify them; rather the Court has little doubt that it was

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due to purposeful action. Likewise, concluding that “Plaintiffs and its [sic] counsel1” would be

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prejudiced if the witnesses are not allowed doesn’t even attempt to meet the standard of “manifest

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injustice.” Despite this, the Court ORDERS:
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The witness list set forth in the pretrial order is amended to include James Steelman,

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Lampe Chrysler Dodge Keep Ram’s Person Most Qualified, Lampe CDJR, 3460 Naglee Road, Tracy,

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CA and Tina Dietrich, FCA’s Person Most Knowledgeable. This is absolutely the last time the Court

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will “bail out” counsel. In future, if counsel truly is unable, despite diligence, to identify a witness

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by name, they SHALL describe in detail the efforts made to do so in the joint pretrial order.

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Failure to name the witness or to explain the inability to do so, will result in the Court refusing to

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allow the witness and to summarily strike the subsequent “objection” to the pretrial order;
2.

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The pretrial order is amended to add as a disputed fact that, “Plaintiffs claim that they

were harmed because FCA US LLC failed to repair the 2012 Dodge Ram 1500 within 30 days.”

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IT IS SO ORDERED.

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Dated:

June 27, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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The Court has absolutely no understanding how “counsel” would be prejudiced by the exclusion of the witnesses. The
attorneys are not parties to the action. If counsel somehow would suffer prejudice as a result, it would be prejudice of their
own making.
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