Weber v. Twin Bridges School District et al

Filing 124

ORDER that qualified immunity defense based on reasonableness of actions is not appropriate in this case. ORDER that witnesses and exhibits listed by defense are not timely. Signed by Judge Richard F. Cebull on 6/11/2010. (EMA)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B U T T E DIVISION M A R K WEBER, ) ) P l a i n t if f , ) ) vs. ) ) T W I N BRIDGES SCHOOL DISTRICT, ) CONSOLIDATED SCHOOL DISTRICT ) N O . 7, MADISON COUNTY ) ) D e f e nd a n t ) ___________________________________ ) C V -0 5 -8 3 -B U -R F C ORDER P la intiff Mark Weber has asked the Court to prohibit Defendant TBSD from ra is ing a "qualified immunity defense based on the reasonableness of its actions" at the upcoming trial, citing Owen v. City of Independence, Mo., 445 U.S. 622 (1980). Since qualified immunity applies only to individuals and not local governmental e ntitie s , Humphries v. County of L.A., 554 F.3d 1170, 1201 (9th Cir. 2009), and the re is no individual defendant remaining in this case, qualified immunity is not at is s ue . Owen did not address deliberate indifference or ratification in the municipal lia b ility context. It is therefore inapposite. 1 More on point is the recent decision in Mortimer v. Baca, where the Ninth C irc uit indicated that a municipal defendant may defend against a claim of d e lib e ra te indifference with evidence that its policies were reasonable. 5 9 4 F.3d 714, 718, 722 (9th Cir. 2010). To hold otherwise would effectively p re c lud e a municipality from defending itself against a claim of deliberate ind iffe re nc e to constitutional rights. That cannot be. W ith regard to a second issue raised at the final pretrial conference, Weber ha s objected to several witnesses and exhibits listed by TBSD on the grounds that the y were not disclosed timely as required by Rule 26 Fed.R.Civ.P. Doc. 122. These witness and exhibits relate to whether Weber mitigated his damages by s e e k ing employment with nearby school districts. Under Rule 26(a) Fed.R.Civ.P., a party's initial disclosure must include the na me s and addresses of witnesses, as well as a copy of documents within its p o s s e s s io n or control, that it intends to use in support of its claims or defenses, unle s s the use is solely for impeachment. Recognizing that a party may not have all o f this information at the time of the initial disclosures, Rule 26(e) further requires a p a rty to supplement these disclosures in a timely manner. Rule 37(c) Fed.R.Civ.P. ma k e s clear that a failure to disclose or supplement as required by Rules 26(a) or (e) p re c lud e s the party from offering the evidence or witness at trial, unless the failure 2 was substantially justified or is harmless. Since the challenged documents and w itne s s e s were not disclosed until May 24, 2010, discovery has long since closed, a nd the trial will commence on June 14, 2010, the failure to disclose is not harmless. At the final pretrial conference, TBSD responded to Weber's objection to the la te disclosure with the argument that such witnesses and exhibits did not have to be d is c lo s e d because they were intended for rebuttal purposes. Because a Defendant o rd ina rily does not have a rebuttal case, but a case-in-chief in which it offers its own e vid e nc e , the Court presumes that TBSD meant to say that these exhibits and w itne s s e s would be offered for impeachment. In any event, substantive evidence, whether testimony or documents, that W e b e r failed to mitigate his damages is not impeachment evidence. Accordingly, unle s s TBSD's failure to disclose these witnesses and documents is "substantially jus tifie d ," they must be excluded. SO ORDERED. D a te d this 10th day of June 2010. /s / Richard F. Cebull_________ R ic ha rd F. Cebull U nite d States District Judge 3

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