United States District Court, E.D. Washington
ORDER ENFORCING SANCTION FOR DEFENDANTS' FAILURE
TO OBEY SCHEDULING ORDER
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
pretrial conference held on August 20, 2019, the Court
granted Plaintiff Rechael Driver's request for
clarification and ruled Defendants Courtyard Spokane Downtown
at the Convention Center, Courtyard Management Corporation,
and Marcourt Investments Incorporated (the “Hotel
Defendants”) are precluded from presenting an
“empty chair” defense at trial. ECF No. 384 at 1.
This Order memorializes and supplements the Court's oral
Hotel Defendants pleaded the affirmative defense that (1)
“Plaintiff's damages, if any, were caused or
contributed to by Co-Defendants [Jason] Pedigo and
Clarkson-Davis. Therefore, any award made in favor of
Plaintiff in this case must be reduced by an amount equal to
the percentage of fault of others in causing or contributing
the damages alleged in the Complaint”' and (2)
“Plaintiff's damages, if any, were caused or
contributed to by Co-Defendant Pedigo's criminal
conduct.” ECF No. 33 at 10.
Court issued its Scheduling Order on March 27, 2018. ECF No.
83. In it, the Court ordered, “[e]ach party shall file
and serve a notice no later than one week after the
discovery cut-off indicating which previously-plead
claims and/or affirmative defenses will be adjudicated at
trial.” Id. at 5.
Court issued an Amended Scheduling Order on October 23, 2018.
ECF No. 138. The Court continued trial and extended remaining
pretrial deadlines. Id. at 2-3. The Court reset the
discovery cutoff to April 16, 2019 and reminded the parties
to file their “Notice of To-Be-Adjudicated Claims and
Affirmative Defenses” no later than “1
Week After Discovery Cutoff, ” or by April 23,
2019. Id. at 2. The Court expressly declared,
“[a]ll other . . . procedures set forth in the
Court's March 27, 2018 Scheduling Order, ECF No. 83,
remain unchanged.” Id.
Hotel Defendants' did not file a notice of their
to-be-adjudicated affirmative defenses by April 23, 2019, or
at any other time. Nor did they seek leave to extend their
deadline for doing so. The Hotel Defendants have repeatedly
failed to comply with the Court's deadlines and
procedures on other occasions. See, e.g., ECF Nos.
134, 201, 212, 222, 223, 282, 283, 289, 353.
moved to preclude the Hotel Defendants from presenting their
affirmative defenses, arguing “they should be precluded
from doing so due to their failure to again follow this
Court's Scheduling Order.” ECF No. 301 at 5. The
Hotel Defendants responded, acknowledging Plaintiff's
motion would, if granted, extend to “evidence regarding
the empty chair defense.” ECF No. 324 at 7.
Court issued its Order Ruling on Motions in Limine
on July 3, 2019. ECF No. 379. In it, the Court granted
Plaintiff's motion and ruled, “Defendants may not
seek adjudication or determination of any affirmative
defenses, although they may certainly undermine
Plaintiff's ability to meet her burden of proof.”
Id. at 3 (citing Fed.R.Civ.P. 16(f),
37(b)(2)(A)(ii)). The Hotel Defendants did not move for
reconsideration of this order and the July 17, 2019 deadline
to do so has passed.See ECF No. 83 at 11.
the Court's earlier ruling, the Hotel Defendants
nevertheless attempted to advance the empty chair defense in
their list of witnesses, exhibits, and deposition
designations. See ECF No. 323 at 6-7, 9; ECF No. 326
at 2, 5-6; ECF No. 375 at 11-12, 15-17. Plaintiff sought
clarification on whether the Court's prior order
encompasses the empty chair defense. ECF No. 382 at 2-3. The
Hotel Defendants similarly sought clarification on whether
former Defendants Pedigo and Clarkson-Davis will appear on
the verdict form. ECF No. 383 at 14.
empty chair defense is no different than a nonparty's
comparative fault, which is an affirmative defense under
Washington law. See Wash. Rev. Code §
4.22.070(1); Wash. Super. Ct. Civ. R. 12(i); 6 Wash. State
Supreme Court Comm. on Jury Instructions, Washington
Practice Series: Washington Pattern Jury
Instructions-Civil WPI 21.10 & note, cmt. (7th ed.
2019 update). Regardless of what the Court's pre-July 3,
2019 orders may have said, it should have been clear to the
Hotel Defendants that they are now precluded from advancing
the empty chair defense and the jury will not consider any
nonparty's comparative fault.
IT IS HEREBY ORDERED:
At trial, the Hotel Defendants may not present evidence on,
or seek adjudication or determination of, any affirmative
defenses, including but not limited to the affirmative
defense of a nonparty's comparative fault, also known as
the “empty chair” defense.
Former Defendants Pedigo and Clarkson-Davis shall not appear
on the verdict form.
The Hotel Defendants' Motion to Reconsider, ECF