Salazar v. Continental Construction of Montana
Filing
163
ORDER granting 100 Motion for Leave to File Document and Add Expert Witness. Signed by Magistrate Carolyn S Ostby on 7/30/2012. (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JUAN SALAZAR,
CV 11-16-BLG-CSO
Plaintiff,
vs.
CONTINENTAL CONSTRUCTION
OF MONTANA, LLC, A&J
CONSTRUCTION OF MONTANA,
INC., and JOHN DOES A-ZZ,
ORDER GRANTING
PLAINTIFF’S MOTION
FOR LEAVE TO FILE
DOCUMENT AND ADD
EXPERT WITNESS
Defendants.
Plaintiff Juan Salazar (“Salazar”) claims that Defendants
Continental Construction of Montana, LLC (“Continental”) and A&J
Construction of Montana, Inc. (“A&J”) failed to provide a safe work
environment resulting in his work-related injuries. Fourth Am. Cmplt.
(DKT 139). Salazar settled his claims against Continental. DKT 140.
The Court recently granted Salazar leave to file his Fourth Amended
Complaint. Order (DKT 138).
Although other motions are pending, the Court here addresses
only Salazar’s Motion for Leave to File Document and Add Expert
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Witness (DKT 100). The Court will address other pending motions by
separate orders. Having considered the parties’ briefs and submissions
respecting the motion at hand, the Court will grant Salazar’s motion as
discussed below.
I.
BACKGROUND
The Court issued a Scheduling Order on July 14, 2011, setting
March 15, 2012, as the deadline for the parties to simultaneously serve
their liability expert disclosures. Scheduling Order (DKT 39) at 2.
Salazar filed the instant motion on May 24, 2012. DKT 100.
II.
PARTIES’ ARGUMENTS
Salazar moves for leave “to obtain the services of a handwriting
expert and include this expert as a supplement to [his] previous expert
witness disclosure.” DKT 100 at 1. He argues that he received on May
24, 2012, certain documents from the Montana Department of Labor
and Industry that had been submitted on his behalf in support of an
application for Independent Contractor Certification. Salazar argues
that the documents, including an affidavit bearing his signature, “do
not appear to have been signed by Juan Salazar ... [but instead] appear
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to have been signed by Sandra Armstrong[,]” who “was the bookkeeper
for Oscar Cruz Construction.” Br. in Support (DKT 101) at 2. Salazar
seeks the Court’s leave to supplement his expert witness disclosure
with a handwriting analyst “to get to the bottom of this issue[.]” Id.
A&J opposes Salazar’s motion arguing that a handwriting expert
is unnecessary because: (1) sufficient evidence already exists respecting
the supporting documents; (2) Salazar’s motion is “confusing” and
“unusual” since “it is highly irregular for a Plaintiff to have a
handwriting expert testify about his own signature[,]”; (3) Salazar has
presented no evidence that Sandra Armstrong signed Salazar’s
affidavit in his stead; and (4) Salazar maintains that he did not
understand the contents of the affidavit which is irrelevant to whether
he signed it. A&J’s Resp. Br. (DKT 106) at 2-4.
In reply, Salazar declares that he has hired Wendy Carlson
(“Carlson”) as an expert document examiner. Salazar’s Reply Br. (DKT
118) at 2. In her report attached to Salazar’s brief, Carlson concludes
that “Sandra Armstrong did indeed forge the signatures and initials of
Juan Manuel Salazar Garcia on the questioned documents [which
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include Salazar’s affidavit, a Colorado driver’s license, a waiver of
worker’s compensation benefits form, and a list of subcontractor tools,
respectively] [.]” Id. Salazar argues that, despite Carlson’s report,
Sandra Armstrong denied in her recent deposition that she forged the
documents. Salazar also argues that: (1) Armstrong testified at her
deposition that her son’s girlfriend forged her name to documents
submitted to the Montana State Fund; (2) the address on Salazar’s
Independent Contractor Exemption Certificate, of which he never
received a copy, bears Armstrong’s business address; (3) Salazar’s
private investigator uncovered evidence, which Salazar attached,
indicating that a Colorado driver’s license issued for Salazar is
fictitious and was actually signed by Sandra Armstrong; and (4) all of
this evidence bears on the credibility of witnesses to this action,
including A&J’s owners, Jay and Diane Foster, Oscar Cruz, and Sandra
Armstrong. Id. at 3-4.
III. DISCUSSION
“A schedule may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). As noted in the Court’s order
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granting Salazar’s motion to amend his Complaint, “[t]his ‘good cause’
standard considers primarily the diligence of the party seeking the
amendment.” DKT 138 at 4 (citing Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992)). In light of the circumstances in
this action, the Court concludes that Salazar diligently sought
modification of the Scheduling Order to supplement his liability expert
disclosures and that Salazar’s reasons for seeking the modification also
satisfy the “good cause” standard.
As noted, Salazar filed the instant motion on May 24, 2012 – the
same day he represents that he received from the Montana Department
of Labor and Industry the allegedly suspect documents submitted on
his behalf in support of an application for Independent Contractor
Certification. He thus was diligent in seeking modification of the
schedule to allow him to retain a handwriting analyst.
Also, Salazar’s recent receipt of documents that he suspects were
forged reasonably altered his theories of recovery in relation to A&J.
This, too, constitutes good cause to permit him “to obtain the services of
a handwriting expert and include this expert as a supplement to [his]
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previous expert witness disclosure[,]” as he has requested.
In reaching this conclusion, the Court is unpersuaded by A&J’s
arguments opposing Salazar’s motion. First, while some evidence
already may exist respecting the documents at issue, the nature of
Salazar’s contention – that is, that the documents carry forged
signatures – is generally a proper subject for expert testimony. See
Fed. R. Evid. 702; U.S. v. Prime, 431 F.3d 1147, 1151-54 (9th Cir. 2005).
Second, the Court finds Salazar’s motion neither confusing nor
unusual under the circumstances of this case. Salazar’s counsel has
represented to the Court that Salazar: (1) is a citizen of Mexico, DKT
139 at ¶ 1; (2) is an undocumented immigrant, DKT 101 at 3; (3) has
less than a high school education, id.; and (4) does not speak English,
id. It is undisputed that the subject documents are in English. That
Salazar’s purported signatures on the documents vary considerably
reasonably raises issues respecting whether he did sign the documents.
See DKT 118-1 at 4-13. Thus, his motion for leave to retain a
handwriting analyst is reasonable.
Third, contrary to A&J’s argument, Salazar has argued and
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presented supporting evidence that Sandra Armstrong signed Salazar’s
affidavit in his stead. Handwriting analyst Wendy Carlson’s report is
attached to Salazar’s reply brief as Exhibit A. See DKT 118-1 at 2-28.
Although Salazar filed this evidence with his reply brief after A&J had
responded to his motion, the report nevertheless meets A&J’s objection
that Salazar did not present any evidence that Sandra Armstrong
signed documents in Salazar’s stead.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Salazar’s Motion
for Leave to File Document and Add Expert Witness (DKT 100) is
GRANTED.
DATED this 30th day of July, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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