Carbajal v. Warner et al

Filing 919

ORDER. ORDERED that the Denver Defendants' Motion to Exclude Undisclosed Trial Witness Chris Maurez 896 is denied without prejudice. Signed by Judge Philip A. Brimmer on 02/08/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02862-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Denver Defendants’ Motion to Exclude
Undisclosed Trial Witness Chris Maurez [Docket No. 896]. Because plaintiff is
proceeding pro se, the Court construes his filings liberally. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
On May 11, 2016, the parties submitted their joint proposed final pretrial order.
Docket No. 818. Plaintiff listed a number of witnesses, but did not provide identifying
information about each witness or a description of each witness’ testimony. Id. at 4-8.
The initial order listed Chris Maurez as a “may call” witness. Id. at 5. On May 18, 2016,
the magistrate judge ordered plaintiff to file an amendment to the final pretrial order
stating the testimony that each witness would provide. Docket No. 822. On August 4,
2016, plaintiff filed his supplement to the final pretrial order. Docket No. 853. The
supplement made no mention of Chris Maurez. Id. On December 6, 2016, the

magistrate judge entered the final pretrial order in this case and incorporated plaintiff’s
supplement by reference. Docket No. 873 at 4. Plaintiff included Mr. Maurez as a “may
call” witness in the witness list for trial he filed on December 14, 2016. Docket No. 885
at 4.
In addition to omitting Mr. Maurez from the witness list in the final pretrial order,
plaintiff failed to identify Mr. Maurez during discovery. Plaintiff did not mention Mr.
Maurez in his initial disclosures, Docket No. 896-1, in his responses to the Denv er
Defendants’ interrogatory requesting the identities of all individuals with discoverable
information, Docket No. 896-2 at 15-16, or in his supplem ental response to the Denver
defendants’ interrogatory. Docket No. 896-3.
At the trial preparation conference held on December 16, 2016, plaintiff stated
that Mr. Maurez was his roommate on April 28, 2009, the date that plaintif f accuses
defendant Dixon of using excessive force against him. Plaintiff stated that he sent Mr.
Maurez text messages that evening regarding the incident and that Mr. Maurez was a
witness to the officers’ search of his residence.
Federal Rule of Civil Procedure 26(a)(3) requires that, for all witnesses who are
intended to be called not solely for impeachment, “the name and, if not previously
provided, the address and telephone number of each witness” must be disclosed at
least 30 days before trial. Fed. R. Civ. P. 26(a)(3)(A)(i). Where a party fails to disclose
witness information as required by Rule 26(a), the “party is not allowed to use that
information or witness to supply evidence . . . at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Plaintiff argues that Mr. Maurez will be called for rebuttal and impeachment
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purposes and that Fed. R. Civ. P. 26(a)(3) therefore does not apply. Docket No. 907 at
2-3. In addition, plaintiff states that he did not know Mr. Maurez’s last name until 2016
and still does not have Mr. Maurez’s contact information. Id. at 3.
While plaintiff is correct that Fed. R. Civ. P. 26(a)(3) does not apply to
impeachment witnesses, plaintiff fails to provide any information about how Mr. Maurez
would impeach the testimony of defendants’ witnesses other than to state that Mr.
Maurez’s testimony will be used to “impeach[] [] falsities” offered by the Denver
defendants. Docket No. 907 at 2. It therefore appears that Mr. Maurez’s testimony is
rebuttal testimony, not impeachment testimony.
Plaintiff has listed Mr. Maurez as a “may call” witness and the Denver defendants
are correct that they would be substantially prejudiced if forced to address the testimony
of Mr. Maurez during plaintiff’s case. Plaintiff’s argument that he did not know his
roommate’s last name and that Mr. Maurez’s contact information was unavailable does
not justify the complete lack of disclosure regarding Mr. Maurez. Notwithstanding those
concerns, there is ample time to cure the prejudice. While the trial in this matter was
set for January 9, 2017, it has since been continued to July 10, 2017. Docket No. 909.
If plaintiff plans to call Mr. Maurez, either in his case in chief or as a rebuttal witness,
plaintiff must, on or before March 10, 2017, provide to defendants Mr. Maurez’s contact
information in accordance with Rule 26(a) and detail Mr. Maurez’s expected testimony,
including copies (or the content of) any text messages exchanged between Mr. Maurez
and plaintiff.
It is therefore
ORDERED that the Denver Defendants’ Motion to Exclude Undisclosed Trial
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Witness Chris Maurez [Docket No. 896] is denied without prejudice.

DATED February 8, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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