1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE W. MORT, an individual, Case No. 1:19-CV-00652-JLT-SKO 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION REGARDING TREATMENT 14 LOUIS DEJOY, POSTMASTER GENERAL, OF WITNESSES UNITED STATES POSTAL SERVICE, 15 (Doc. 177) 16 Defendant. 17 18 This matter is currently set for trial on April 10, 2023. All witnesses currently on the 19 parties’ pretrial lists were disclosed and publicly known since at least the initial pretrial order 20 issued on June 21, 2022 (Doc. 97). On November 2, 2022, Mort filed a motion requesting the 21 Court issue an order regarding the treatment of witnesses. (Doc. 177.) Mort asks the Court to 22 order the parties to “refrain from any conduct which would give the appearance of intimidation, 23 retaliation or favoritism to any witness identified by either party . . .” (Id. at 2.) Mort contends the 24 Court has the authority to grant the requested relief under Federal Rule of Evidence 611(a)(3) and 25 18 U.S.C. § 1512(b), 1519. (Doc. 177-1 at 2.) As an evidentiary basis, Mort alleges that the U.S. 26 Postal Inspection Service has engaged in retaliatory conduct against his witness Sally Diaz and 27 against Jensen Rodrigues, nephew of his witness Keith Silva. (Id. at 1-3.) As discussed below, 28 Mort’s motion provides neither an adequate legal basis nor evidentiary basis to support his 1 request. Accordingly, the Court DENIES Mort’s motion. 2 I. DISCUSSION 3 Federal Rule of Civil Procedure 7(b) requires the movant of any request for an order of 4 the Court to “state with particularity the grounds for seeking the order.” The grounds must 5 include both a valid legal and sufficient factual basis for the requested relief. See Aref v. Hickman, 6 2007 WL 9706634, at *1 (C.D. Cal. Aug. 10, 2007). Rule 11, which authorizes sanctions against 7 parties who file frivolous motions, further mandates that every motion contain claims that “are 8 warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing 9 existing law or for establishing new law” and that “factual contentions have evidentiary support.” 10 Fed. R. Civ. P. 11(b)(2)-(3). 11 A. Legal Basis 12 Mort’s motion lacks a valid legal basis for an order regarding the treatment of witnesses. 13 First, Mort’s reliance upon Federal Rule of Evidence 611(a)(3) does not readily identify the 14 authority upon which the Court could grant the requested relief. Rule 611(a)(3) states the “court 15 should exercise reasonable control over the mode and order of examining witnesses and 16 presenting evidence so as to . . . protect witnesses from harassment or undue embarrassment.” 17 The comments by the Advisory Committee explain that this subsection “calls for a judgement 18 under the particular circumstances whether interrogation tactics entail harassment or undue 19 embarrassment.” Fed. R. Evid. 611(a)(3), advisory committee’s note. Both the text of the statute 20 and the accompany comments focus on the Court’s role of protecting witnesses during trial while 21 under examination by the opposing party. Mort provided no case law or other authority that 22 explains how and under what circumstances Rule 611 may extend to pretrial protections of 23 witnesses. It is not the Court’s role to sua sponte provide the appropriate legal basis for relief 24 where the movant fails to do so.1 25 26 1 Even if the Court were to construe Mort’s motion as one for injunctive relief, his motion makes no attempt to plead 27 the required elements. See e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer 28 irreparable harm in the absence of preliminary relief, [3] that the balance of the equities tips in his favor, and [4] that 1 Second, Mort’s reference to 18 U.S.C. § 1512(b), 1519 is equally unavailing. Sections 2 1512 and 1519 are part of the United States criminal code governing the tampering with witnesses 3 and evidence in federal courts and administrative agencies. Although these statutes reflect the 4 criminal repercussions that could occur as a result of undue harassment, intimidation, or threats 5 upon a witness, nothing in the statutes indicates how the Court may have authority, in a civil 6 matter, to issue an order to enjoin parties from engaging in such criminal conduct. Again, Mort 7 failed to provide any legal authority or case law to explain how 18 U.S.C. § 1512(b), 1519 afford 8 the requested relief. 9 B. Evidentiary Basis 10 Even if Mort had identified a valid legal basis for his request, his conclusory allegations 11 that Sally Diaz and Jensen Rodrigues experienced retaliatory conduct do not warrant relief. (See 12 Doc. 177 at 1-2.) First, Mort claims that the U.S. Postal Inspection Service withdrew a contract 13 position for his witness Sally Diaz. (Doc. 177-1 at 2.) Mort submitted an email of a text that he 14 allegedly received from Sally, which states that her job offer had been revoked without an 15 explanation. (Doc. 177-2 at 4.) Mort contends that the revocation indicates retaliation because it 16 occurred “shortly after she was named as a witness for Plaintiff.” (Doc. 177 at 1-2.) In response, 17 the U.S. Postal Inspection Service clarifies that Sally Diaz has been on Mort’s witness list since 18 the beginning of the litigation and testified on his behalf at the August 2016 EEOC hearing. (Doc. 19 178 at 4-5.) The revocation of a job contract approximately six years after the U.S. Postal Service 20 learned of her involvement in Mort’s case does not, without more, implicate a retaliatory motive. 21 See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (“The cases that 22 accept mere temporal proximity between an employer’s knowledge of protected activity and an 23 adverse employment action as sufficient evidence of causality to establish a prima facie case 24 uniformly hold that the temporal proximity must be ‘very close.’”); see also Manatt v. Bank of 25 Am., 339 F.3d 792, 802 (9th Cir.2003) (holding nine months too attenuated to infer retaliation). 26 Second, Mort asserts that Jensen Rodrigues, who is currently employed by the U.S. Postal 27 Inspection Service and is the nephew of Mort’s proposed impeachment witness Keith Silva, “is 28 suffering adverse employment actions.” (Doc. 177-1 at 1-2.) In his initial motion, Mort gave no 1 additional information about the type, frequency, or impact of the alleged adverse employment 2 actions Mr. Rodrigues has suffered. Although the Court lacks a proper standard to review the 3 evidentiary sufficiency of his allegations because Mort did not identify a valid legal basis for his 4 request, Mort’s vague and conclusory allegations that Mr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE W. MORT, an individual, Case No. 1:19-CV-00652-JLT-SKO 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION REGARDING TREATMENT 14 LOUIS DEJOY, POSTMASTER GENERAL, OF WITNESSES UNITED STATES POSTAL SERVICE, 15 (Doc. 177) 16 Defendant. 17 18 This matter is currently set for trial on April 10, 2023. All witnesses currently on the 19 parties’ pretrial lists were disclosed and publicly known since at least the initial pretrial order 20 issued on June 21, 2022 (Doc. 97). On November 2, 2022, Mort filed a motion requesting the 21 Court issue an order regarding the treatment of witnesses. (Doc. 177.) Mort asks the Court to 22 order the parties to “refrain from any conduct which would give the appearance of intimidation, 23 retaliation or favoritism to any witness identified by either party . . .” (Id. at 2.) Mort contends the 24 Court has the authority to grant the requested relief under Federal Rule of Evidence 611(a)(3) and 25 18 U.S.C. § 1512(b), 1519. (Doc. 177-1 at 2.) As an evidentiary basis, Mort alleges that the U.S. 26 Postal Inspection Service has engaged in retaliatory conduct against his witness Sally Diaz and 27 against Jensen Rodrigues, nephew of his witness Keith Silva. (Id. at 1-3.) As discussed below, 28 Mort’s motion provides neither an adequate legal basis nor evidentiary basis to support his 1 request. Accordingly, the Court DENIES Mort’s motion. 2 I. DISCUSSION 3 Federal Rule of Civil Procedure 7(b) requires the movant of any request for an order of 4 the Court to “state with particularity the grounds for seeking the order.” The grounds must 5 include both a valid legal and sufficient factual basis for the requested relief. See Aref v. Hickman, 6 2007 WL 9706634, at *1 (C.D. Cal. Aug. 10, 2007). Rule 11, which authorizes sanctions against 7 parties who file frivolous motions, further mandates that every motion contain claims that “are 8 warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing 9 existing law or for establishing new law” and that “factual contentions have evidentiary support.” 10 Fed. R. Civ. P. 11(b)(2)-(3). 11 A. Legal Basis 12 Mort’s motion lacks a valid legal basis for an order regarding the treatment of witnesses. 13 First, Mort’s reliance upon Federal Rule of Evidence 611(a)(3) does not readily identify the 14 authority upon which the Court could grant the requested relief. Rule 611(a)(3) states the “court 15 should exercise reasonable control over the mode and order of examining witnesses and 16 presenting evidence so as to . . . protect witnesses from harassment or undue embarrassment.” 17 The comments by the Advisory Committee explain that this subsection “calls for a judgement 18 under the particular circumstances whether interrogation tactics entail harassment or undue 19 embarrassment.” Fed. R. Evid. 611(a)(3), advisory committee’s note. Both the text of the statute 20 and the accompany comments focus on the Court’s role of protecting witnesses during trial while 21 under examination by the opposing party. Mort provided no case law or other authority that 22 explains how and under what circumstances Rule 611 may extend to pretrial protections of 23 witnesses. It is not the Court’s role to sua sponte provide the appropriate legal basis for relief 24 where the movant fails to do so.1 25 26 1 Even if the Court were to construe Mort’s motion as one for injunctive relief, his motion makes no attempt to plead 27 the required elements. See e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer 28 irreparable harm in the absence of preliminary relief, [3] that the balance of the equities tips in his favor, and [4] that 1 Second, Mort’s reference to 18 U.S.C. § 1512(b), 1519 is equally unavailing. Sections 2 1512 and 1519 are part of the United States criminal code governing the tampering with witnesses 3 and evidence in federal courts and administrative agencies. Although these statutes reflect the 4 criminal repercussions that could occur as a result of undue harassment, intimidation, or threats 5 upon a witness, nothing in the statutes indicates how the Court may have authority, in a civil 6 matter, to issue an order to enjoin parties from engaging in such criminal conduct. Again, Mort 7 failed to provide any legal authority or case law to explain how 18 U.S.C. § 1512(b), 1519 afford 8 the requested relief. 9 B. Evidentiary Basis 10 Even if Mort had identified a valid legal basis for his request, his conclusory allegations 11 that Sally Diaz and Jensen Rodrigues experienced retaliatory conduct do not warrant relief. (See 12 Doc. 177 at 1-2.) First, Mort claims that the U.S. Postal Inspection Service withdrew a contract 13 position for his witness Sally Diaz. (Doc. 177-1 at 2.) Mort submitted an email of a text that he 14 allegedly received from Sally, which states that her job offer had been revoked without an 15 explanation. (Doc. 177-2 at 4.) Mort contends that the revocation indicates retaliation because it 16 occurred “shortly after she was named as a witness for Plaintiff.” (Doc. 177 at 1-2.) In response, 17 the U.S. Postal Inspection Service clarifies that Sally Diaz has been on Mort’s witness list since 18 the beginning of the litigation and testified on his behalf at the August 2016 EEOC hearing. (Doc. 19 178 at 4-5.) The revocation of a job contract approximately six years after the U.S. Postal Service 20 learned of her involvement in Mort’s case does not, without more, implicate a retaliatory motive. 21 See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (“The cases that 22 accept mere temporal proximity between an employer’s knowledge of protected activity and an 23 adverse employment action as sufficient evidence of causality to establish a prima facie case 24 uniformly hold that the temporal proximity must be ‘very close.’”); see also Manatt v. Bank of 25 Am., 339 F.3d 792, 802 (9th Cir.2003) (holding nine months too attenuated to infer retaliation). 26 Second, Mort asserts that Jensen Rodrigues, who is currently employed by the U.S. Postal 27 Inspection Service and is the nephew of Mort’s proposed impeachment witness Keith Silva, “is 28 suffering adverse employment actions.” (Doc. 177-1 at 1-2.) In his initial motion, Mort gave no 1 additional information about the type, frequency, or impact of the alleged adverse employment 2 actions Mr. Rodrigues has suffered. Although the Court lacks a proper standard to review the 3 evidentiary sufficiency of his allegations because Mort did not identify a valid legal basis for his 4 request, Mort’s vague and conclusory allegations that Mr. Rodrigues suffered “adverse 5 employment actions” does not satisfy even the slightest burden of proof upon which the Court 6 could assess the motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (evaluating a motion to 7 dismiss under Rule 12(b)(6) assumes alleged facts as true, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice”). 9 In his reply, Mort submitted a statement from Mr. Rodrigues which detailed several 10 adverse employment actions including, inter alia, a negative performance review, “gaslighting” 11 by his superior, a verbal assault from his superior, and the overloading of tasks and projects 12 compared to his coworkers. (Doc. 179-1 at 7-8.) Mort gave no explanation for why he did not 13 include this statement with his initial motion. The Court will not consider evidence or arguments 14 submitted for the first time with a party’s reply brief because it deprives the opposing the 15 opportunity to respond.2 Sepe v. Gordon Trucking, Inc., 2017 WL 2547034, at *5 (E.D. Cal. June 16 13, 2017) (“The Court will not address arguments raised for the first time in a reply.”); Chavez v. 17 AmeriGas Propane, Inc., 2015 WL 12859721, at *4 (C.D. Cal. Feb. 11, 2015) (refusing to 18 consider arguments and evidence submitted for the first time in the reply brief); Ellis v. J.P. 19 Morgan Chase & Co., 2015 WL 9178076, at *5 (N.D. Cal. Dec. 17, 2015) (explaining that 20 evidence presented for the first time in a movant’s reply brief deprives the opposing party of the 21 ability to give context or its explanation of the evidence). Even though Mr. Rodrigues’s statement 22 does not impact the Court’s ruling on the instant motion, his allegations, if true, present a 23 significant concern of retaliatory conduct prohibited by the Americans with Disabilities Act. 42 24 U.S.C. § 12203. The Court cautions the parties of the legal repercussions that could occur under 25 the ADA, which makes it unlawful to “coerce, intimidate, threaten, or interfere” with any 26
27 2 Mort also submitted a statement from Keith Silva which describes a culture of discrimination and retaliation in the workplace at the United States Postal Service and recounts the adverse actions taken against his nephew. (Doc. 179-1 28 at 4-5.) Mr. Silva’s statement suffers the same lateness issues as Mr. Rodrigues’s statement and presents inadmissible 1 | individual who aids or encourages another to exercise his rights under the ADA. 42 U.S.C. 2 | § 12203(b). Moreover, the ADA prohibits discrimination against any individual who testifies or 3 | assists in an investigation leading to a cause of action under the ADA. 42 U.S.C. § 12203(a). 4 Il. CONCLUSION AND ORDER 5 Because Mort has not provided a sufficient legal or factual basis for his motion, he has 6 | failed to carry his burden for his requested relief. Nonetheless, the Court advises the parties of the 7 | legal repercussions that exist for the tampering of witnesses and retaliatory conduct towards any 8 || person who assists in the exercise of rights under the ADA, as explained above. For the forgoing 9 | reasons, Mort’s motion for order regarding treatment of witnesses (Doc. 177) is DENIED. 10 IT IS SO ORDERED. D Dated: _ January 12, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28