Cruz v. Hammond City

Filing 86

ORDER granting 79 Motion to Strike 67 Witness List & 77 Witness List. Signed by Judge Martin L.C. Feldman on 3/30/2015. (Reference: ALL CASES)(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEANNINE CRUZ

CIVIL ACTION

v.

NO. 13-5220
c/w 09-6304

CITY OF HAMMOND

SECTION "F"
ORDER AND REASONS

Before the Court is the defendant City of Hammond's motion to
strike the plaintiff’s amended witness lists. For the reasons that
follow, the motion is GRANTED.
Background
Jeannine Cruz sued the City of Hammond in 2009 and 2013 in
this

Court,

alleging

claims

for

religious

discrimination,

retaliation, and intentional infliction of emotional distress under
state and federal laws, including 42 U.S.C. § 1983, arising from
her

employment

Department.

as

a

police

officer

with

the

Hammond

Police

Although she was ultimately reinstated (and granted

back pay) following administrative proceedings that lasted several
years, she is pursuing her remaining claims against the City of
Hammond before this Court.
Ms. Cruz's 2009 case was stayed pending related state and
administrative

matters.

The

state

court

proceedings

and

administrative process went on for several years. In 2013 when the
state court remanded the case to the Civil Service Board, the

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plaintiff filed her 2013 lawsuit.

For some reason, after Ms. Cruz

filed her 2013 lawsuit, even though administrative proceedings were
ongoing, no party requested a stay of the 2013 lawsuit.

Rather,

the Court held a scheduling conference on January 30, 2014 at which
time discovery deadlines and a trial schedule were selected.

That

scheduling order required, among other things, that witness lists
be filed by August 7, 2014.
witness

list

containing

The plaintiff timely filed her first
23

witnesses

and

additional general categories of witnesses.

included

several

When the discovery

deadlines and deadline for filing pretrial motions were imminent,
the City of Hammond urged the Court to continue the trial scheduled
in the 2013 case.

The parties advised the Court that Ms. Cruz had

been reinstated and, since that time, was provided back pay and
emoluments.

The Court granted the defendant's opposed motion to

continue the trial setting in the 2013 case, noting that little
discovery had taken place, the 2009 case had not even been restored
to the docket, and neither side would be prejudiced; in fact, the
Court observed, it was reasonable to assume that the parties needed
to

streamline

the

issues

remaining

proceedings had been resolved.
September 4, 2014.

See

after

the

administrative

Order and Reasons dated

Thereafter, the 2009 case was reopened.

To resolve the plaintiff's remaining claims in both lawsuits,
the Court held another scheduling conference, and issued a new
scheduling order in which the Court and counsel selected a May 4,

2

2015

jury

trial,

along

with

other

deadlines,

including

a

requirement that witness lists must be filed by February 13, 2015.
Without requesting an extension of time to file her witness lists,
without seeking leave of Court, and without offering any excuse for
filing tardy witness lists, the plaintiff filed one amended witness
list on March 9, 2015 (adding 16 additional witnesses to the
witness list filed in 2014) and she filed yet another amended
witness list on March 20, 2015 (adding 4 additional witnesses).
The City of Hammond now seeks to strike the March 9 and 20 amended
witness lists.
I.
Federal Rule of Civil Procedure 16(b)(4) provides that a
scheduling order, once issued, “may be modified only for good cause
and with the judge’s consent.”

Moreover, pursuant to Rule 16(f),

the Court may sanction a party that "fails to obey a scheduling or
other pretrial order." This Court’s scheduling order warns counsel
that a request for an extension of deadlines will only be granted
“upon timely motion filed in compliance with the Local Rules and
upon a showing of good cause.”

Finally, the scheduling order,

consistent with Rule 16(f), articulates the sanction to be imposed
if witness or exhibit lists are not filed in compliance with the
scheduling order:
The Court will not permit any witness, expert or fact, to
testify or any exhibits to be used unless there has been
compliance with this Order as it pertains to the witness
and/or exhibits, without an order to do so issued on
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motion for good cause shown.
The defendant contends that the plaintiff's amended witness
lists were filed in contravention of Rule 16(b) and this Court’s
scheduling order.1

Accordingly, the defendant urges the Court to

strike the amended witness lists and preclude these witnesses from
testifying at trial.

An order striking the amended witness lists

is warranted where, as here, the plaintiff offers no reasonable
explanation for the tardy submission, has failed to persuade the
Court that the additional 20 witnesses are vital to the proof of
the remaining claims, the City of Hammond will suffer prejudice if
the 20 additional witnesses are allowed to testify at the trial
where the discovery deadline has now passed, and a continuance
would cause additional prejudice. Simply put, the Court reasonably
exercises its broad discretion to preserve the integrity of the
scheduling order when the plaintiff has failed to show good cause
for the patently tardy submission.
The Court considers four factors in determining whether the
good cause standard is met: (1) the explanation for the failure to
timely

move

for

leave

to

amend;

(2)

the

importance

of

the

testimony; (3) potential prejudice in allowing the testimony; and
(4) the availability of a continuance to cure such prejudice. See

1

The defendant notes that the plaintiff failed to
properly request leave of Court to file her amended witness lists
and that the plaintiff has not shown good cause for filing her
tardy witness lists.
4

Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546
(5th Cir. 2003); see also Barrett v. Atl. Richfield, Co., 95 F.3d
375,

380

(5th

Cir.

1996).

None

of

these

factors

favor

the

plaintiff.
First, having failed even to seek leave of Court to submit out
of time her amended witness lists, the plaintiff offered no
explanation whatsoever to why she could not have notified the
defendant and the Court sooner as to these 20 additional witnesses.
The "explanation" offered in her opposition papers is that she
expressly reserved her right to supplement and amend her timely
filed witness list and, therefore, she is entitled to amend the
witness list within the discovery deadline.
frivolous.

This argument is

To accept it would make meaningless and trivialize

deadlines and schedules altogether, rendering the Court powerless
to enforce blatant disregard of any pretrial deadlines.
Second, the plaintiff suggests that these 20 newly identified
witnesses "are material and important to ascertaining the truth in
this matter."

Particularly in the context of this long-running

dispute among these parties, the plaintiff fails to persuade.

She

claims that many of these new witnesses will offer testimony about
the retaliatory nature of her being written up and eventually fired
for issues related to her mobile video recorder and her failure to
appear in court.

However, if these newly added witnesses were

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sufficiently important to prove her remaining claims2 -- which are
based on facts from more than five years ago -- the plaintiff would
have identified them well before March 2015.
Third,

the

Court

considers

potential

prejudice

that

the

defendant might suffer if the plaintiff is permitted to call these
20 additional witnesses.

The defendant suggests that the untimely

amended witness lists pose great prejudice to it, given that by the
time the Court issues its ruling, the deposition and discovery
deadlines will have since expired.

The defendant suggests that

this "trial by ambush" should not be permitted and that the five
days allotted for this trial will be expanded to accommodate these
20 new witnesses.

The plaintiff counters that the defendant will

suffer no prejudice because most of the witnesses are within the
defendant's control and "[a]fter years of litigation before the
Civil Service Board, State courts, and before this Court, it is
disingenuous to suggest anything related to these proceedings
constitutes

'trial

by

ambush.'"

The

Court

disagrees.

The

defendant will be prejudiced if the plaintiff is permitted to call
20 additional witnesses.

Deadlines are in place to provide the

parties and the Court with some measure of predictability.

2

It

The Court underscores that Ms. Cruz has been reinstated
and has received back pay.
The defendant submits that the
plaintiff should not be permitted to re-litigate her termination
claim, which was resolved and now moot; she has added new witnesses
that were involved in her administrative and state proceedings.
The Court agrees, and reminds all counsel and parties of the
mandate of 28 U.S.C. § 1927.
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would have been reasonable for the defendant to focus its discovery
efforts on only those witnesses it intended to call and for those
it had been notified that the plaintiff would call.

To now allow

the plaintiff to call at trial witnesses who were only identified
well-after the deadline to issue written discovery requests and
only days leading up to the actual discovery and deposition
deadline would be unfair, prejudicial, and not in the interests of
justice.
Fourth, and finally, the Court considers whether a continuance
could cure the prejudice to the defendant.

Noticeably absent from

the plaintiff's opposition papers is any mention of this factor.
No doubt because it favors the defendant's position. The defendant
points out that the Court has previously cautioned: "Once new
deadlines are set, no continuances will be granted."

And the

defendant realistically observes that this matter has been pending
since 2009 such that yet another continuance would cause, not cure,
prejudice insofar as the defendant has been defending against the
plaintiff's claims in several venues over the last seven years.
The Court agrees.

To continue deadlines in litigation that has

been

so

pending

inexplicably

for

long

disregarded

simply

her

because

obligation

to

the

plaintiff

timely

advise

has
her

adversary of all of the witnesses she recently decided she wants to
call would cause more prejudice than it would cure.
The defendant's motion to strike is GRANTED. Again, attention

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should be drawn to the provisions of 28 U.S.C. § 1927.
New Orleans, Louisiana, March 30, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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