United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Merck (“Plaintiff”) alleges she was inside the
cab of her parked semi-truck when Defendant Robert Gary
Parker (“Parker”), a truck driver employed by
Defendant Swift Transportation (“Swift”), crashed
into Plaintiff's truck, thereby causing injury to
Plaintiff's back. (Doc. 1). The case is set for a jury
trial, and Plaintiff now moves in limine to exclude
allegations in Plaintiff's complaint that contradict
Plaintiff's current representation of the facts of the
case from being introduced on cross-examination. (Doc. 181).
specifically, Plaintiff's complaint alleged that
Parker's truck “struck the front end of
[Plaintiff's] semi-trailer, ” dragging
Plaintiff's truck and causing it to collide with nearby
vehicles. (Doc. 1). Plaintiff's complaint then alleged
that, “[a]s a direct result of the collision,
[Plaintiff] was thrown from the sleeping area located on top
of the cab.” (Id.). It further alleged that
Plaintiff “fell onto the gear shifter and central area
of the cab breaking her back.” (Id.).
Plaintiff's complaint was signed by Plaintiff's
counsel and filed on April 13, 2016.
was then deposed on November 30, 2016. (Doc. 184-1). During
her deposition, Plaintiff was asked “[d]id you fall out
of the sleeper berth area?” to which Plaintiff
responded “[n]o ma'am.” (Id.).
Plaintiff was later asked “[a]t any time between when
you first felt the jolt and you exited your truck, was your
body on the ground at all?” to which Plaintiff likewise
responded “[n]o ma'am.” (Id.).
Instead, during her deposition, Plaintiff explained that the
impact occurred when she was lying in her sleeper berth, that
she sat up in response to the impact, that she then stood up
and attempted to exit her truck, and that she was thrown into
the closet before she was finally able to exit.
now moves in limine to exclude the allegations in
Plaintiff's complaint from being introduced on
cross-examination. (Doc. 181). In support, Plaintiff argues
her complaint was unverified, that cross-examining her on the
allegations in her complaint would be unfairly prejudicial,
and that she should be granted leave to amend.
(Id.). These arguments are addressed in turn.
Plaintiff, relying on antique, 1925 caselaw, argues that,
“[w]here a complaint is unverified, [ . . . ] exclusion
of those allegations is proper.” (Doc. 181 at 2). There
are several problems with this argument. For one, the ancient
case on which Plaintiff relies is easily distinguishable on
the facts, because, there, the court concluded the statements
likely did not come from the party they were attributed to.
That is not the case here. Here, the Court assumes the
allegations in Plaintiff's complaint are attributable to
Plaintiff because, pursuant to Federal Rule of Civil
Procedure 11, an attorney who presents a pleading to the
court “certifies to the best of the [attorney's]
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, [ . . . that ] the
factual contentions have evidentiary support.”
Fed.R.Civ.P. 11(b). The Court has no reason to believe
Plaintiff's counsel did not comply with her obligations
under Rule 11. Thus, this Court presumes the factual
allegations in Plaintiff's complaint were made after
Plaintiff's counsel conducted a reasonable inquiry of her
client, and thus that the allegations are attributable to
Plaintiff's argument is also unpersuasive because it
would permit a Plaintiff to make unsubstantiated factual
assertions in a complaint without fear of being
cross-examined on them should the case proceed to trial, so
long as the complaint was unverified. This would undermine
the efficiency of the legal system and the basic purpose of
the Federal Rules of Civil Procedure. See Fed. R.
Civ. P. 1 (explaining that the Federal Rules of Civil
Procedure “should be construed, administered, and
employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and
proceeding”). For these reasons, Swift will not be
precluded from cross-examining Plaintiff based on the
allegations in her complaint.
next argument is that the allegations in her complaint should
be excluded pursuant to Federal Rules of Evidence 401 and 403
because they are irrelevant and because their probative value
is substantially outweighed by the danger of unfair
prejudice. Evidence is relevant if it has any tendency to
make a fact of consequence in determining the action more or
less probable than it would be without the evidence.
Fed.R.Evid. 401. However, the court may exclude relevant
evidence “if its probative value is substantially
outweighed by a danger of [ . . . ] unfair prejudice.”
the allegations in Plaintiff's complaint are relevant, as
they may impugn Plaintiff's credibility based on her
deposition testimony. In addition, they are not unfairly
prejudicial, as they do not encourage the jury to reach a
conclusion on an improper basis. See, e.g., In
re: Cathode Ray Tube (CRT) Antitrust Litig., No. 1917,
2016 WL 6246736, at *11 (N.D. Cal. Oct. 26, 2016) (citations
omitted). Thus, Plaintiff may be cross-examined on them.
Plaintiff requests leave to amend her complaint. When a party
seeks to amend its pleading after the date specified in the
scheduling order has passed, the party must first satisfy the
requirements of Rule 16, and then must demonstrate amendment
is proper under Rule 15. See Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).
Since the deadline to amend the complaint has passed,
Plaintiff must satisfy the requirements of both rules before
leave to amend will be granted.
first determination is whether leave to amend is appropriate
under Rule 16. Under Rule 16, a court may only modify a
scheduling order for “good cause.” Fed.R.Civ.P.
16(b)(4). Rule 16's “good cause” standard
“primarily considers the diligence of the party seeking
the amendment.” Johnson, 975 F.2d at 609.
Thus, a party demonstrates good cause by acting diligently to
meet the original deadlines set forth by the court.
Fed.R.Civ.P. 16 1983 Advisory Committee Notes; Zivkovic
v. S. California Edison Co., 302 F.3d 1080, 1087 (9th
Cir. 2002). In determining a party's diligence, a court
may look to: (1) the party's diligence in assisting the
court in creating a workable Rule 16 order; (2) whether the
party's noncompliance with a Rule 16 deadline occurred
because of the development of matters which could not have
been reasonably foreseen or anticipated at the time of the
Rule 16 scheduling conference; and (3) whether the party was
diligent in seeking amendment of the Rule 16 order once it
became apparent the party could not comply. See,
e.g., Morgal v. Maricopa Cty. Bd. of
Sup'rs, 284 F.R.D. 452, 460 (D. Ariz. 2012)
(citation omitted). Because the inquiry focuses on diligence,
a party's “carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.” Johnson, 975 F.2d at 609.
Plaintiff filed suit in 2016. Presumptively, at that time,
Plaintiff knew the relevant facts underlying her claim,
including whether she fell from the sleeper berth and onto
the gear shifter, thereby breaking her back, or simply fell
into the closet. Further, Plaintiff's counsel
presumptively knew the relevant facts underlying her
client's claim when drafting the complaint and submitting
it to the court. In addition, Plaintiff and her counsel were
at least put on notice that the factual allegations in
Plaintiff's complaint were inaccurate during
Plaintiff's November 30, 2016, deposition. (Doc. 184-2).
And yet, Plaintiff and her counsel waited until August 31,
2018, on the eve of trial, to request leave to amend the
complaint. This is not compatible with a finding of
diligence. Thus, Plaintiff will not be granted leave to
IT IS ORDERED Plaintiffs Motion in
Limine to Exclude Reference to the Factual Allegations