1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CALVIN MOUNTJOY, No. 2:15-cv-02204-DJC-DB 12 Plaintiff, 13 v. ORDER EXCLUDING TESTIMONY FROM 14 PLAINTIFF’S FORMER SPOUSE

SETERUS, INC.,

15 Defendant. 16 17 18 Two days into trial, Plaintiff Calvin Mountjoy seeks to introduce testimony from 19 his former spouse, Tracy, a witness never disclosed. Plaintiff argues that Tracy will 20 serve as a rebuttal witness, but Plaintiff has failed to comply with the procedures laid 21 out in this Court’s Trial Confirmation Order (ECF No. 118) for bringing in previously 22 undisclosed witnesses, even as a purported rebuttal witness — let alone complying 23 with the requirements of the Federal Rules of Civil Procedure. Therefore, for the 24 reasons set forth below, the Court denies Plaintiff’s request to introduce the testimony 25 of his former spouse, Tracy. 26 //// 27 //// 28 //// 1 BACKGROUND 2 This case was initially removed to the Eastern District of California on October 3 22, 2015. (See ECF No. 1.) On May, 24, 2021, Plaintiff provided his Initial Disclosures, 4 listing himself and a former member of his counsel, Attorney Kim Harrison, under his 5 List of Witnesses. (See ECF No. 97-3 at 36 (providing a copy of Plaintiff’s Initial 6 Disclosures in Defendant’s Exhibit 3 to its Motion for Summary Judgment).) 7 On December 7, 2023, this Court held the final pretrial conference between 8 Plaintiff and Defendant Seterus, Inc. (“Seterus”). (See ECF No. 117.) Before the final 9 pretrial conference, the Court, consistent with its Standing Order in Civil Cases, 10 required the parties to file a Joint Pretrial Statement covering all of the topics detailed 11 in Local Rule 281. (See Standing Order in Civil Cases at 6–7; ECF No. 113) L.R. 281 12 (Mar. 1, 2022). Relevant here, Local Rule 281 requires each party to “list (names and 13 addresses) of all prospective witnesses, whether offered in person or by deposition or 14 interrogatory, designating those who are expert witnesses.” L.R. 281(a)(10). On 15 December 6, 2023, Plaintiff filed his Pretrial Statement, where he disclosed his 16 intended witness — only himself. (See Pl.’s Pretrial Statement (ECF No. 116) at 10.) 17 Following the final pretrial conference, the Court issued its Trial Confirmation 18 Order, limiting the parties’ witnesses to “those described in their pretrial statements.” 19 (See Trial Confirmation Order (ECF No. 118) at 2 (citing ECF Nos. 114, 116).) In the 20 Trial Confirmation Order, the Court made clear: “The Court does not allow 21 undisclosed witnesses to be called for any purpose, including impeachment or 22 rebuttal, unless they meet” one of two criteria. (See Trial Confirmation Order at 2–3.) 23 Moreover, the Trial Confirmation Order required the parties to submit a Joint 24 Witness List, again disclosing their intended witnesses. (See Trial Confirmation Order 25 at 5.) The parties filed a “Joint Witness List,” where Plaintiff again disclosed that his 26 only anticipated witness was himself. (See Joint Witness List (ECF No. 132) at 2.) 27 On February 5, 2024, this Court empaneled a jury and began the trial. (See 28 ECF No. 142.) Following opening arguments, Plaintiff’s counsel began her direct 1 examination of Plaintiff, which Plaintiff’s counsel concluded on February 6, 2024. 2 Following the conclusion of Plaintiff’s direct examination, rather than cross-examine 3 Plaintiff, Defense counsel decided to wait to call Plaintiff until Defendant began its 4 case-in-chief. After Defense counsel’s direct examination of Plaintiff, Plaintiff’s counsel 5 moved in-court to introduce the testimony of Tracy, Plaintiff’s former spouse, to testify 6 as to Plaintiff’s initial interactions and loan modification with the previously-dismissed 7 Defendant, Bank of America, N.A. During both counsels’ direct examination of 8 Plaintiff, questions elicited answers from Plaintiff that indicated that he did not know 9 his personal finances because he did not handle them — Tracy did. 10 At the end of Defense counsel’s direct examination of Plaintiff for the day, the 11 Court addressed the issue of Tracy’s testimony with the parties. The Court instructed 12 the parties to file any supplemental authority or briefing on the issue by midnight, 13 notifying the parties that a decision would be issued by the following morning before 14 trial resumed on February 7, 2024. Seterus filed a brief, which the Court has 15 considered. 16 DISCUSSION 17 I. Exclusion Under This Court’s Trial Confirmation Order Is Proper. 18 As an initial matter, exclusion of Tracy’s testimony is proper under the standard 19 established by this Court’s Trial Confirmation Order. See Wong v. Regents of Univ. of 20 California, 410 F.3d 1052, 1060 (9th Cir. 2005). In that Order, the Court specifically 21 stated, in bold: “The Court does not allow undisclosed witnesses to be called for 22 any purpose, including impeachment or rebuttal, unless they meet the following 23 criteria:” (Trial Confirmation Order at 2). The first criterion, relevant here, allows for 24 undisclosed witnesses where “[t]he party offering the witness demonstrates that the 25 witness is for the purpose of rebutting evidence that could not be reasonably 26 anticipated at the pretrial conference.” (Id.) 27 Here, Plaintiff seeks to introduce Tracy’s testimony as rebuttal evidence, but 28 Plaintiff has failed to demonstrate that Tracy’s testimony would be for a purpose not 1 reasonably anticipated at the pretrial conference held on December 7, 2023. (See 2 Trial Confirmation Order at 2.) Seterus made clear its intent to dispute whether 3 Plaintiff experienced a “material change” in his financial circumstances since the 4 Motion for Summary Judgment and in its disclosed “Disputed Facts” in its Pretrial 5 Statement. (See ECF No. 97-4 at 10 (arguing in its Summary Judgment Motion that 6 Plaintiff was not entitled to review of his loan modification application because “his 7 June 2015 application was based on the same financial figures as his prior 8 applications—which were denied.”); ECF No. 114 at 3, 5; see also ECF No. 112 at 25 9 (holding at summary judgment that there was a material change in Plaintiff’s financial 10 circumstances).) Moreover, Plaintiff’s Deposition, taken on June 9, 2021, revealed 11 already that “Tracy did all the stuff” related to the loan modification application, the 12 finances, and interacting with Bank of America and some of the other Defendants that 13 were involved in this case and the prior lawsuit. (See ECF No. 97-3 at 74.) Thus, 14 Plaintiff cannot claim surprise regarding whether Plaintiff was credible to testify 15 regarding his personal finances and cannot show how Tracy’s testimony could not 16 have been reasonably anticipated at the pretrial conference. Indeed, the Court finds it 17 notable that the initial trial testimony regarding Tracy handling the household finances 18 came out in Plaintiff’s counsel’s direct examination of Plaintiff, further illustrating that 19 she could have — and should have — anticipated this testimony. While Plaintiff’s theory 20 of the case is not clear to the Court even at this late stage, to the extent that the 21 amount of payment made under Plaintiff’s mortgage is relevant, it should have been 22 obvious to counsel that it was Tracy, not Plaintiff, who could testify to those payments.1 23 24 1 While Plaintiff has not requested to modify the final pretrial order in this case, such relief would be improper. Federal Rule of Civil Procedure 16(e) states that a “court may modify the order issued after a 25 final pretrial conference only to prevent manifest injustice.” Modification of a final pretrial order is permitted only when (1) the opposing party would not sustain substantial injury; (2) refusal might result 26 in injustice; and (3) inconvenience to the court is slight. See Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1432 n.2 (9th Cir. 1991) (citing Angle v. Sky Chef, Inc., 535 F.3d 492, 495 (9th Cir. 1976)). A 27 district court is well within its discretion to exclude claims, defenses, evidence and witnesses not disclosed or identified in the final pretrial order. See Swinton v. Potomac Corp., 270 F.3d 794, 809 (9th 28 Cir. 2001). Indeed, a district court may exclude anything not disclosed in the pretrial order even where 1 II. Exclusion Under Federal Rule of Civil Procedure 37(c)(1). 2 Further, exclusion of Tracy’s testimony is automatically proper under Federal 3 Rule of Civil Procedure 37(c)(1). A district court may properly impose an exclusion 4 sanction where a noncompliant party has failed to show that the discovery violation 5 was either substantially justified or harmless. See Merchant v. Corizon Health, Inc., 993 6 F.3d 733, 740 (9th Cir. 2021) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 7 F.3d 1101, 1106–07 (9th Cir. 2001)). However, because of the “automatic” nature of 8 Federal Rule of Civil Procedure 37(c)(1), where a noncompliant party does not “avail 9 himself of the opportunity to seek a lesser sanction[,]” id. at 741 (quoting Vanderberg 10 v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 705 (8th Cir. 2018)), “the party is 11 not allowed to use that information or witness to supply evidence on a motion, at a 12 hearing, or at a trial[,]” id. (quoting Fed. R. Civ. P. 37(c)(1)). Plaintiff has not provided 13 substantial justification for the repeated failure to disclose Tracy as a potential witness 14 and has failed to show how permitting Tracy’s unknown testimony two days into trial 15 would be harmless to Seterus. Therefore, exclusion of Tracy’s testimony is proper as a 16 sanction. 17 First, Plaintiff cannot justify why he did not disclose Tracy earlier. As explained 18 above, whether Plaintiff would be credible to testify to his finances has been at issue 19 since his deposition and whether Plaintiff experienced a material change in his 20 financial circumstances has been at issue since summary judgment. Moreover, 21 Plaintiff offers no persuasive justification. That his testimony at trial revealed that he 22 did not handle his finances is not sufficient justification when he already disclosed that 23 during his deposition.

24 purposes of pretrial conferences and excuse parties who disregard court orders.” United States v. 25 Lummi Indian Tribe, 841 F.2d 317, 321 (9th Cir. 1988). The Court finds that the factors identified above weigh against granting relief. Given Plaintiff’s failure to disclose Tracy as a likely witness, Defendant has 26 not been given a fair opportunity to prepare for her testimony. Second, Plaintiff has not shown how payments under the mortgage are relevant to her claims, and they appear irrelevant on their face to 27 several of them, including those under the Homeowner Bill of Rights and for Intentional Infliction of Emotional Distress. Third, there would be an inconvenience to the Court as the trial would be 28 significantly expanded beyond the estimate given by the Parties (see Trial Confirmation Order at 6), 1 Second, Plaintiff has failed to show how introduction of Tracy’s testimony would 2 | be harmless to Seterus. Seterus would have no way of deposing Tracy given that trial 3 | is underway and had no way of anticipating that Plaintiff would call Tracy to testify to 4 | matters that are of uncertain relevance to Plaintiff's legal claims and Seterus’s 5 | affirmative defenses. As a result, Plaintiff cannot show how introduction of Tracy's 6 | testimony would be harmless to Seterus. 7 CONCLUSION 8 Counsel's failure to comply with basic discovery requirements and this □□□□□□□ 9 | orders appears to be a pattern. The docket includes multiple Orders to Show Cause. 10 | Counsel ignored several deadlines in the Court's Trial Confirmation Order, including 11 | by failing to object to Motions in Limine to which she clearly is opposed. As far as the 12 | Court can tell, Plaintiff's counsel in this case has largely failed to comply with her 13 | obligations under Rule 26(a). Counsel has already been effectively forced to abandon 14 | claims for damages regarding medical care and harm to Plaintiff's credit when facing 15 | the likelihood of sanctions under Rule 37(c). The Court will not countenance 16 | continued failure to follow the Federal Rules of Civil Procedure and this Court's 17 | orders. 18 For the reasons set forth above, Plaintiff's request to introduce the testimony of 19 | his former spouse, Tracy, is DENIED. 20

IT IS SO ORDERED.

22 | Dated: February 7, 2024 “Dane J CoO □□□□ Hon. Daniel alabretta 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28