Case 1:07-cv-00026-OWW-TAG Document 81 Filed 12/17/2007 Page 1 of 4

6 IN THE UNITED STATES DISTRICT COURT FOR THE

7 EASTERN DISTRICT OF CALIFORNIA

9 DAVID F. JADWIN, D.O., ) No. CV-F-07-026 OWW/TAG

)
10 ) ORDER DENYING PLAINTIFF'S
) REQUEST FOR RECONSIDERATION
11 Plaintiff, ) BY THE DISTRICT COURT OF
) MAGISTRATE JUDGE'S ORDER
12 vs. ) (Doc. 68)
)
13 )
COUNTY OF KERN, et al., )
14 )
)
15 Defendant. )
)
16 )

17 Plaintiff has filed a request for reconsideration by the

18 District Court of a Magistrate Judge’s order. Plaintiff argues

19 that the “Order Denying Motion to Strike Fifth Affirmative

20 Defense and Request for Sanctions” filed on October 23, 2007,

21 (Doc. 64), is clearly erroneous or contrary to law.

22 Plaintiff, alleged to be a whistleblowing physician with

23 disabilities, has filed a “Second Supplemental Complaint for

24 Damages & Injunctive Relief” against his employer, the County of

25 Kern, and officers and/or employees of the Kern Medical Center

26 for retaliation for whistleblowing activities, for interference

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 Case 1:07-cv-00026-OWW-TAG Document 81 Filed 12/17/2007 Page 2 of 4

1 with Plaintiff’s right to medical leave and retaliation for his

2 exercise of the right to medical leave, for employment

3 discrimination, failure to accommodate and failure to engage in

4 interactive consultation concerning an employee with

5 disabilities, for denial of procedural due process, defamation,

6 and violation of the Fair Labor Standards Act.

7 Defendants allege as a Fifth Affirmative Defense that,

8 “during Plaintiff’s employment at Kern Medical Center, Plaintiff

9 was arrogant, disagreeable, uncooperative, intimidating,

10 overbearing, self-righteous and unfriendly and that Plaintiff’s

11 behavior contributed to and was the direct and proximate cause of

12 any stresses, disabilities or injuries that Plaintiff believes he

13 sustained.”

14 Pursuant to Rule 72-303(f), Local Rules of Practice, and 28

15 U.S.C. § 636(b)(1)(A), Plaintiff’s request for reconsideration

16 may be granted if it is concluded that the Magistrate Judge’s

17 Order is “clearly erroneous or contrary to law.”

18 Upon review of the record in this action, the Magistrate

19 Judge’s Order denying Plaintiff’s motion to strike the Fifth

20 Affirmative Defense is neither clearly erroneous or contrary to

21 law, nor an abuse of discretion.

22 In resolving the motion to strike, the Magistrate Judge

23 utilized the correct legal standards. Motions to strike are

24 disfavored and resolution of a motion to strike is within the

25 Magistrate Judge’s discretion. Plaintiff complains that the

26 Fifth Affirmative Defense infers contributory or comparative

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1 negligence and that, if Defendant proves facts that Plaintiff’s

2 own behavior contributed to the alleged hostile work environment,

3 such facts do not dispose of Plaintiff’s claims because none of

4 Plaintiff’s claims for relief rest on a theory of negligence.

5 However, evidence of Plaintiff’s conduct is relevant to the

6 totality of the circumstances underlying Plaintiff’s allegations,

7 including his allegation of a hostile work environment. The

8 denial of the motion to strike was without prejudice to its

9 renewal upon completion of discovery. Plaintiff’s contention

10 that the Fifth Affirmative Defense does not provide him fair

11 notice in sufficient particularity of the gravamen of the defense

12 is unpersuasive and, in any event, can be fleshed out through

13 discovery and other pretrial proceedings. Finally, Plaintiff’s

14 contention that the Magistrate Judge erred by articulating

15 theories upon which Plaintiff’s conduct could constitute a

16 defense in addition to that articulated by Defendants does not

17 require granting the motion to strike or a conclusion that

18 Defendants have waived any such theories. The evidence described

19 is relevant and leave to amend may be requested pursuant to Rule

20 15, Federal Rules of Civil Procedure. This action is in the

21 early pretrial phase and discovery is not yet complete.

22 As there is no error, Plaintiff’s request for

23 reconsideration by the District Court of a Magistrate Judge’s

24 order is DENIED.

25 ///

26 ///

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 Case 1:07-cv-00026-OWW-TAG Document 81 Filed 12/17/2007 Page 4 of 4

1 IT IS SO ORDERED.

2 Dated: December 17, 2007 /s/ Oliver W. Wanger

668554 UNITED STATES DISTRICT JUDGE
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