Figueroa v. Gannett Company Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 Pending before the Court is the Motion to Preclude Defendant’s Inconsistent 15 Positions on Plaintiff’s Impairment under ADA and Her Capability to Perform Essential 16 Functions of Her Work and/or Reconsideration of Plaintiff’s Motion in Limine # 2 (Doc. 17 117) filed by Plaintiff Natalie Figueroa (“Figueroa”). Defendants have filed a response 18 (Doc. 119), and Figueroa has filed a reply (Doc. 121). 19 Figueroa requests this Court bar Defendants from asserting the inconsistent positions 20 that Figueroa did not suffer from any recognized disability and arguing Figueroa was 21 disabled from work. To the extent this overlaps Figueroa’s Motion in Limine # 2, Figueroa 22 requests reconsideration of the Court’s ruling on that motion. 23 Defendants assert the motion is untimely because it was not filed until over six 24 months after the deadline for filing motions in limine. Indeed, the Court’s template for the 25 proposed Joint Pretrial Order states the motions in limine are to be filed with the proposed 26 Joint Pretrial Order. However, as the Court did not formally set this deadline in an Order, 27 it declines to find the pending motion is untimely. 28 The parties dispute whether Defendants take inconsistent positions. As asserted by 1 Defendants, their position changed as the circumstances changed and Defendants received 2 additional information.1 This change in positions is not inconsistent, but is warranted by the 3 changing circumstances. This does not present a situation where Defendants gained an 4 advantage by taking one position and now seeks to gain a second advantage by taking a 5 inconsistent position. See e.g. United States v. Marshall, No. 2:10-cr-00236-GMN-PAL, 6 2012 U.S. Dist. LEXIS 189091, *11-12 (D. Nev. Dec. 12, 2012), citing Helfand v. Gerson, 7 105 F.3d 530, 534 (9th Cir. 1997) (judicial estoppel doctrine “prohibits a party from gaining 8 an advantage by taking one position and then seeking a second advantage by taking a 9 different position that is incompatible with the first”). 10 Figueroa “asserts a manifest error would occur by allowing Defendants to use the 11 Rincon Medical release to contest disability and at the same time, to deny the release proves 12 capability to perform essential functions.” Reply (Doc. 121, p. 3). However, this does not 13 recognize that, as time passed and circumstances changed, Defendants’ position changed. 14 Plaintiff has not succeeded in persuading the Court that accepting Defendants’ earlier 15 position results in a perception the Court has been misled. Similarly, the Court does not 16 agree that the change in Defendants’ positions give Defendants an unfair advantage or 17 impose an unfair determinant to Figueroa. See Vaughman v. Walt Disney World Co., 685 18 F.3d 1131, 1132 (9th Cir. 2012) (discussing factors to consider in determining whether to 19 impose judicial estoppel). The Court finds denial of the Motion to Preclude Defendant’s 20 Inconsistent Positions is appropriate. 21 Lastly, to the extent Figueroa seeks reconsideration of the Court’s ruling on her 22 Motion in Limine #2, the Court finds reconsideration is inappropriate. See Harsco Corp. 23 24 1Defendants had believed Figueroa could return to work as outlined in the note from 25 the doctor. Subsequently, Defendants learned Figueroa purportedly made representations to Metlife and the Social Security Administration that she was disabled and/or unable to work; 26 Defendants also learned Figueroa’s Social Security Disability Insurance claim was approved 27 and the Social Security Administration had determined Figueroa was disabled. 28 - 2 - 1 || v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476 U.S. 1171 (1986) (“The 2 || purpose of a motion for reconsideration is to correct manifest errors of law or fact or to 3 || present newly discovered evidence.”) ; United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 4 || (D.Ariz. 1998) (motion for reconsideration is not to ask the court “to rethink what the court 5 || had already thought through—trightly or wrongly[;]” claims the court was in error on the 6 || issues should generally be directed to appellate court), citations omitted. 7 Accordingly, IT IS ORDERED the Motion to Preclude Defendant’s Inconsistent 8 || Positions on Plaintiff’s Impairment under ADA and Her Capability to Perform Essential 9 || Functions of Her Work and/or Reconsideration of Plaintiff's Motion in Limine # 2 (Doc. 10 | 117) is DENIED. 11 DATED this 27th day of October, 2021. 12 EZ. ving HO Qo gore 14 Cindy K. Jor§€énso 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-