Martin v. Her

Filing 64

ORDER signed by Chief District Judge Kimberly J. Mueller on 12/3/21 OVERRULING 62 Officer Her's Objections. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Smiley Martin,

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No. Case 2:18-cv-01658-KJM-KJN
Plaintiff,

ORDER

v.
Officer J. Her,
Defendant.

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The court’s final pretrial order in this matter listed several undisputed facts and permitted

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the parties to object within fourteen days. See FPTO at 2–4, 11. Defendant Officer Her objects

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that some of these facts are actually disputed. See Objs., ECF No. 62. He claimed

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unambiguously at summary judgment, however, that the same facts were undisputed. Compare

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FPTO at 4 with Def.’s Stmt. Undisp. Facts Nos. 18–38, ECF No. 33-7 and with Mem. at 3–4,

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ECF No. 33-2. Plaintiff urges the court to hold Officer Her to that previous position. See

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generally Resp., ECF No. 63. The court agrees. “[S]tatements of fact contained in a brief may be

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considered admissions of the party in the discretion of the district court.” Am. Title Ins. Co. v.

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Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) (emphasis omitted). Officer Her has not

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argued that his admissions were accidental or incorrect, and he has not cited evidence that might

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create a dispute that could be adjudicated at trial. Cf. Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860
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(9th Cir. 1995) (“[If] the party making an ostensible judicial admission explains the error . . . , the

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trial court must accord the explanation due weight.”). His objections are overruled.

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IT IS SO ORDERED.
DATED: December 3, 2021.

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