Curley v. Wells Fargo & Company et al

Filing 133

ORDER DIRECTING PARTIES TO SPECIFIC ARGUMENTS IN PREPARATION FOR SUMMARY JUDGMENT HEARING Re: Dkt. No. 128 . Signed by Judge Nathanael Cousins on 7/21/2015. (lmh, COURT STAFF) (Filed on 7/21/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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7 DAVID M. CURLEY, SR.,

Case No. 13-cv-03805 NC

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ORDER DIRECTING PARTIES TO
SPECIFIC ARGUMENTS IN
PREPARATION FOR SUMMARY
JUDGMENT HEARING

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Plaintiff,
v.

10 WELLS FARGO & CO., and others,
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Re: Dkt. No. 128
Defendants.

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The Court provides notice that the parties should be prepared to address two
particular arguments raised in plaintiff’s supplemental opposition, Dkt. No. 128.
First, Curley objects to the declaration of Alisha Mulder under Federal Rules of Civil
Procedure 26 and 37, asserting that she was not disclosed by Wells Fargo as a witness.
Under Rule 37(c), if a party fails to identify a witness as required by the rules, then the
party is not allowed to use that witness to provide evidence in a summary judgment motion,
“unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c).
Second, Curley cites four state cases on page three that he says stand for the
proposition that “one cannot continue to deal with a person and then retroactively assert
there was a material breach so as to excuse their performance.”
IT IS SO ORDERED.
Date: July 21, 2015
_________________________
Nathanael M. Cousins
United States Magistrate Judge

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Case No. 13-cv-03805 NC