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Ritchie v. National Football League

United States District Court, D. Hawaii

June 20, 2016

DEB RITCHIE, Plaintiff,


          J. Michael Seabright Chief United States District Judge.


         This Order concerns two Motions: (1) Defendant National Football League’s (“NFL”) Motion in Limine No. 7 to Exclude Testimony from Witnesses not Called at the First Trial, Doc. No. 473; and (2) Defendant State of Hawaii’s (the “State”) Motion to Dismiss, or in the Alternative, to Strike Plaintiff’s Witness List Filed May 7, 2016, Doc. No. 471. As indicated at the June 16, 2016 hearing, both Motions are GRANTED in PART and DENIED in PART.

         At this stage, the court declines to dismiss the action and refuses to exclude entirely any testimony from witnesses who did not testify at the prior March 2015 trial (the “first trial”). Plaintiff Deb Ritchie (“Plaintiff”) is limited to naming (if desired) three additional witnesses, that is, witnesses who did not testify at the first trial (whether called by Plaintiff or by either Defendant).[1]Plaintiff must name any such additional witnesses by filing and serving a new complete witness list on or before June 23, 2016. Plaintiff must also disclose to Defendants by June 23, 2016 any new exhibits related to these additional witnesses that were not previously disclosed to Defendants. The deadline for discovery related to the three additional witnesses is extended to July 30, 2016.

         II. BACKGROUND[2]

         A re-trial of the remaining issues in this case was originally set for June 18, 2015. Doc. No. 370. Upon Motion by Plaintiff, the trial date was continued to March 8, 2016. Doc. No. 398. Plaintiff’s former counsel was allowed to withdraw from this action on December 8, 2015, Doc. No. 405, and Plaintiff has proceeded pro se since counsel withdrew.

         Accordingly, on December 17, 2015, the court issued a “Notice to Pro Se Litigant, ” informing Plaintiff that (among other matters) she must familiarize herself with, and follow, the Federal Rules of Civil Procedure, Federal Rules of Evidence, and this court’s local rules. Doc. No. 407, Notice at 1. The Notice reminded Plaintiff that she “must know and meet all court deadlines and case filing requirements.” Id. The court also notified Plaintiff that her pro se status does not excuse her from complying with all trial-related requirements. Id. at 2. And on December 23, 2015, the court reaffirmed a trial date of March 8, 2016, setting various pretrial deadlines including that:

[b]y February 16, 2016, each party shall serve and file a final comprehensive witness list indicating the identity of each witness that the party will call at trial and describing concisely the substance of the testimony to be given and the estimated time required for the testimony of the witness on direct examination.

Doc. No. 411, Second Am. Rule 16 Sched. Order ¶ 21.

         On February 17, 2016, Plaintiff filed a witness list consisting of 86 “witnesses likely to be called, ” Doc. No. 433, whereas the first trial consisted of only twelve witnesses in total (i.e., by all parties). The February 17, 2016 proposed witness list included (1) NFL Commissioner Roger Goodell, (2) physicist Stephen Hawking and his wife, and (3) approximately 43 NFL players (including, for example, Peyton Manning, Andrew Luck, Matt Schaub, and unnamed “friends and family [of certain players] in attendance”). Doc. No. 433.

         On February 29, 2016, the court held a pre-trial hearing regarding the March 8, 2016 trial. At that hearing, the court explained to Plaintiff that, although the court was not limiting Plaintiff to calling only the same witnesses that were called at the first trial, Plaintiff’s proposed list of 86 potential witnesses was inappropriate. Specifically, the court informed Plaintiff that she was not permitted to “put on a totally different trial” and explained in considerable detail that Defendants had a right to depose new witnesses and to disclosure of new evidence related to such witnesses. Doc. No. 463, Tr. at 15-20. It was clear that if Plaintiff desired to expand her witness list substantively, then the trial could not proceed on March 8, 2016. See, e.g., id. at 17, 24-25, 33. Plaintiff requested a continuance of the trial date, to which Defendants consented, and trial was rescheduled for August 23, 2016. Id. at 17, 28, 39; Doc. No. 459.

         During the hearing, Plaintiff agreed to provide “a realistic [witness] list with a fairly detailed description” of proposed witness testimony. Tr. at 30-31. Plaintiff stated “I will pare it down[.]” Id. at 43. The court granted Plaintiff until April 15, 2016 to provide her final witness list, including disclosures required under Federal Rule of Civil Procedure 26(a). Id. at 41-42. The court warned Plaintiff -- and she acknowledged -- that “[i]f you do another 82-witness list and [Defendants] come in and object, I’m likely to sustain that objection.” Id. at 65. The court told Plaintiff -- and she acknowledged -- that “[y]ou’ve got to get serious and really pare down this witness list to a serious list.” Id. The court set a July 1, 2016 deadline for any discovery related to newly-named witnesses, thus allowing Defendants to conduct discovery related to the new witnesses.

         On April 15, 2016, Plaintiff filed a Motion for Extension of Time to File Final Witness List, asking for “a few weeks to a month to complete the tasks[.]” Doc. No. 468, Mot. at 4. The court granted the request, extending the deadline for Plaintiff to provide her final witness list to opposing counsel to May 6, 2016. Doc. No. 469. Plaintiff thus had from February 29, 2016 until May 6, 2016 to shorten her list of witnesses to a final list.

         On May 7, 2016, Plaintiff filed a witness list. The list is exactly the same as the witness list previously filed on February 17, 2016. See Doc. No. 470; compare Doc. No. 433.

         Accordingly, on May 12, 2016, the State filed its Motion to Dismiss, or, in the Alternative to Strike Plaintiff’s Witness List. Doc. No. 471. And on May 13, 2016, the NFL filed its Motion in Limine No. 7 to Exclude Testimony from Witnesses not Called at the First Trial. Doc. No. 473.

         In her Oppositions, Plaintiff explains that she uploaded the wrong file on May 7, 2016, mistakenly filing the “list from February” and not “the list [t]he Plaintiff had been painfully working on.” Doc. No. 478, Mem. at 5; Doc. No. 479, Mem. at 6. Nevertheless, Plaintiff has never filed a correct final witness list -- and it has been over a month since she claims she uploaded the wrong file.[3] Further, it is clear based on the hearing on the Motions that Plaintiff did not subsequently ...

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