Brigham v. Anderson et al
MEMORANDUM OPINION AND ORDER. The parties Joint Motion for Extension to Submit Joint Pretrial Order is DENIED as MOOT 36 . It is, further, ORDERED that Plaintiff's Motions for Leave to File Inmate Witness List 40 & 42 are GRANTED. Signed by Magistrate Judge Keith F. Giblin on 8/23/16. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 9:14-CV-120
AARON ANDERSON, et al,
MEMORANDUM OPINION AND ORDER
Pending before the Court is the parties Joint Motion for Extension of Time to Submit Joint
Pretrial Order (docket entry no. 36), Defendants’ Motion in Limine (docket entry no. 38), Plaintiff’s
First Motion for Leave to File Inmate Witness List or Continuance (docket entry no. 40), Plaintiff’s
Amended Motion for Leave to File Inmate Witness or Continuance (docket entry no. 42),
Defendants’ Response (docket entry no. 43), and Plaintiff’s Reply (docket entry no. 44).
This Court’s Amended Scheduling Order filed April 14, 2016, required both parties to
identify any inmate witnesses and their inmate numbers on or before July 6, 2016 (docket entry no.
35). In addition, the Amended Scheduling Order required the parties to submit a joint pretrial order
(including motions in limine, proposed jury instructions and charges, and a suggested verdict form)
on or before August 5, 2016, and to file any objections to proposed exhibits and witnesses, and any
responses to motions in limine on or before August 19, 2016.
On August 5, 2016, the parties filed a Joint Motion for Extension of Time to submit the joint
pretrial order. Due to scheduling conflicts, work travel and changes in lead counsel, the parties
sought additional time to confer over the documents and file a joint pre-trial order as required.
Defendants alone, however, filed a Proposed Pretrial Order on August 12, 2016, in addition to
defendants’ motion in limine. The Certificate of Conference in Defendants’ Proposed Pretrial Order
states that counsel for the defendants attempted to contact plaintiff’s counsel by telephone but was
unable to reach him in order to confer on the pretrial order and exhibits.
Plaintiff then filed a First Motion for Leave to File Inmate Witnesses or Continuance on
August 21, 2016 (docket entry no. 40). Plaintiff Amended this motion on August 22, 2016 (docket
entry no. 42). In this Motion, plaintiff concedes he was derelict in his duty to timely file plaintiff’s
inmate witness list but seeks leave to submit his inmate witness list late or, in the alternative,
requests a continuance. Plaintiff lists eleven inmate witnesses with TDCJ numbers but provides no
summary of their proposed testimony. Plaintiff did include exhibits which reference the inmate
witnesses’ potential testimony.
Defendants responded to Plaintiff’s Amended Motion for Leave or Continuance, asking this
Court to exclude the testimony of these potential witnesses and/or strike plaintiff’s pleadings (docket
entry no. 43). Defendants argue the late designation will prejudice the defendants and constitute
unfair surprise. Specifically, defendants argue they are unable to depose the proposed witnesses or
conduct further discovery to ascertain their testimony. Defendants also complain of plaintiff’s
failure to comply with this Court’s Amended Scheduling order in failing to file a joint pretrial order,
a motion in limine, proposed jury instructions and charges, a suggested verdict form and a list of
exhibits. Finally, defendants object to the eleven inmate witnesses’ testimony as not relevant or
duplicative and asks that a continuance, if considered, be denied.
Plaintiff responds that he has not filed a separate exhibit list “because the Defendants’ exhibit
list is complete.” Plaintiff states he has no objection to the jury instructions and charges submitted
by the defendants or their verdict form. Plaintiff states further his only objection to the Defendants’
motion in limine is that “the phrasing sounds like a motion to exclude rather than a request that
counsel approach before going into the listed topics.” Plaintiff states explicitly he does not have a
separate motion in limine nor any objections to the defendants’ list of witnesses or exhibits. Finally,
plaintiff states that all the evidence in this case was exchanged with the initial disclosures, which
contained a list of all of the inmate witnesses, and defendants cannot argue surprise or prejudice by
the amended witness list. Plaintiff finally states he is ready for trial as long as the Court can arrange
for the transportation of the inmate witnesses for trial.
Although plaintiff’s lack of diligence in timely and fully following this Court’s orders is
apparent from the record in this cause, this Court will grant Plaintiff’s Amended Motion for Leave
to File Inmate Witnesses (docket entry no. 42). Plaintiff states he is ready for trial and the Court
concurs that the defendants cannot genuinely argue prejudice or surprise if this witnesses were in fact
disclosed in the parties’ initial disclosures. Defendants appear to have had ample time to depose and
conduct discovery with respect to these witnesses as warranted. It appears from the motions outlined
above, plaintiff intends to use the defendants exhibits in the prosecution of his case. Plaintiff states
unequivocally he has no objections to defendants list of exhibits and witnesses and no objections to
defendants proposed jury instructions, charges and verdict form.
Although not required of the Court, the Court made an independent review of plaintiff’s
attached exhibits to determine the relevance and cumulative nature of the proposed witnesses
testimony. The Court also searched the inmate locator website provided by the Texas Department
of Criminal Justice. In making this review, the Court has determined that several of the witnesses
cannot be located, their testimony is irrelevant and/or cumulative. In addition to plaintiff himself,
plaintiff will be limited to the following three witnesses in the prosecution of his case: (1) Johnny
Saunders (#01507220), (2) Byron Mayfield (#00297319) and (3) Clarence DeWayne Jackson
(01291566). The Court will enter the necessary orders to ensure these witnesses attendance at trial.
It is, therefore,
ORDERED that the parties Joint Motion for Extension to Submit Joint Pretrial Order is
DENIED as MOOT (docket entry no. 36). It is, further, ORDERED that Plaintiff’s Motions for
Leave to File Inmate Witness List (docket entry nos. 40 & 42) are GRANTED. Defendants’ Motion
in Limine will be taken up at trial. It is noted that any objections, however, filed by plaintiff are
untimely and will not be considered. Plaintiff is admonished that no objections will be considered
at trial regarding defendants motion in limine, defendants’ list of exhibits or witnesses, defendants’
proposed jury instruction, charge and verdict form. Any further motions filed by plaintiff will not
be considered by this Court as they are untimely.
SIGNED this ____ day of _____________________________________, 2016.
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?