Armada Concrete, LLC v. Jaynes Corporation et al
Filing
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AMENDED ORDER that 81 Motion to Amend the Joint Pretrial Order is DENIED. Signed by Chief Judge Gloria M. Navarro on 5/2/17. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ARMADA CONCRETE, LLC,
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Plaintiffs,
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vs.
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JAYNES CORPORATION; WESTERN SURETY
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COMPANY,
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Defendants.
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JAYNES CORPORATION,
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Third-Party Plaintiff,
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vs.
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LIBERTY MUTUAL INSURANCE COMPANY, )
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Third-Party Defendant.
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JAYNES CORPORATION,
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Counter Claimant,
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vs.
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ARMADA CONCRETE, LLC,
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Counter Defendant.
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Case No.: 2:14-cv-02176-GMN-GWF
AMENDED
ORDER
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Before the Court is the Motion to Amend, (ECF No. 81), filed by Defendants Jaynes
Corporation and Western Surety Company (collectively “Jaynes”). Jaynes seeks to amend the
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parties’ Joint Pretrial Order, (ECF No. 74), to add an additional witness, Paul Pitcher
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(“Pitcher”), and certain other exhibits. (See Mot. to Amend). Plaintiff Armada Concrete, LLC
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(“Armada”) filed a Response, (ECF No. 88), and Jaynes filed a Reply, (ECF No. 94). For the
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reasons discussed below, the Court DENIES the Motion.
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I.
LEGAL STANDARD
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Under Rule 16(e), “[t]he court may modify the order issued after a final pretrial
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conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e); Byrd v. Guess, 137 F.3d
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1126, 1132 (9th Cir. 1998); (see also Joint Pretrial Order 10:17–18, ECF No. 74) (“This order
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may not be amended except by court order and based upon the parties’ agreement or to prevent
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manifest injustice.”). “In evaluating a motion to amend the pretrial order, a district court
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should consider four factors: (1) the degree of prejudice or surprise to the defendants if the
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order is modified; (2) the ability of the defendants to cure the prejudice; (3) any impact of
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modification on the orderly and efficient conduct of the trial; and (4) any willfulness or bad
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faith by the party seeking modification.” Galdamez v. Potter, 415 F.3d 1015, 1020 (9th Cir.
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2005) (citing Byrd, 137 F.3d at 1132).
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After considering these factors, if “the court determines that refusal to allow a
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modification might result in injustice while allowance would cause no substantial injury to the
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opponent and no more than slight inconvenience to the court, a modification should ordinarily
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be allowed.” United States v. First Nat’l Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981).
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The trial judge may exclude evidence not identified in accordance with the pretrial order when
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the party seeking to introduce the evidence offers no justification for delay. Colvin v. United
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States, 549 F.2d 1338, 1340 (9th Cir. 1977). In such a case, “[a]ny injustice resulting from
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exclusion . . . comes from [the defaulting party’s] own failure properly to present his case.” Id.
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II.
DISCUSSION
The degree of prejudice to Armada is simply too high to justify amending the Joint
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Pretrial Order to add the proposed witness and exhibits. Armada has relied on the Joint Pretrial
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Order in preparing its case for trial. (See Resp. 8:5–7, ECF No. 88). It is therefore immaterial
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that Armada originally identified Pitcher as a potential witness in its Initial Disclosure as
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Jaynes has given no indication prior to the instant Motion that it intended to call Pitcher as a
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witness. (See Mot. to Amend 2:6–7). Given that Jaynes’ Motion was filed little more than a
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month before trial, the Court finds that amendment at this late stage would cause a “substantial
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injury” to Armada. First Nat. Bank of Circle, 652 F.2d at 887.
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Additionally, Jaynes provides no justification for the delay in amending the Joint Pretrial
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Order. Instead, Jaynes simply claims that “[a]s a result of the tens of thousands of documents
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in this matter, Jaynes inadvertently failed to disclose Mr. Pitcher and these additional
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Documents.” (Mot. to Amend 5:2–4, ECF No. 81). While this explanation might be relevant to
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Jaynes’ failure to disclose the exhibits, it hardly explains why Jaynes failed to disclose Pitcher
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until this late date. Further, it does not appear to the Court that the presence of “tens of
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thousands of documents” makes this case so complex or unique as to justify Jaynes’ oversight
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in this instance. Jaynes’ flimsy justification suggests trial by ambush rather than inadvertence.
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See Shakespear v. Wal-Mart Stores, Inc., No. 2:12-cv-01064-MMD, 2013 WL 6498898, at *4
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(D. Nev. Dec. 10, 2013) (“[A]lthough there is a public policy to hear cases on their merits,
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there is also a public policy against trial by ambush.”). As the Ninth Circuit has repeatedly
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noted, any injustice resulting from exclusion in such situations comes from the party’s own
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failure to properly present his case. See, e.g., Delta Sys., Inc. v. TRW, 874 F.2d 815 (9th Cir.
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1989); United States v. Lummi Indian Tribe, 841 F.2d 317, 320 (9th Cir. 1988); Colvin, 549
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F.2d at 1340.
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Finally, both parties agree that at least some of the proposed exhibits are redundant of
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timely disclosed exhibits. (See Mot. to Am. 4:10–11); (Resp. 10:9–10). Accordingly, any
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prejudice to Jaynes in excluding these exhibits is minimal. Based on the foregoing, the Court
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therefore DENIES Jaynes’ Motion to Amend.
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III.
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CONCLUSION
IT IS HEREBY ORDERED that Jaynes’ Motion to Amend the Joint Pretrial Order,
(ECF No. 81), is DENIED.
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DATED this _____ day of May, 2017.
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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court
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