United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
the Court is the Motion to Amend, (ECF No. 81), filed by
Defendants Jaynes Corporation and Western Surety Company
(collectively “Jaynes”). Jaynes seeks to amend
the parties' Joint Pretrial Order, (ECF No. 74), to add
an additional witness, Paul Pitcher (“Pitcher”),
and certain other exhibits. (See Mot. to Amend).
Plaintiff Armada Concrete, LLC (“Armada”) filed a
Response, (ECF No. 88), and Jaynes filed a Reply, (ECF No.
94). For the reasons discussed below, the Court DENIES the
Rule 16(e), “[t]he court may modify the order issued
after a final pretrial conference only to prevent manifest
injustice.” Fed.R.Civ.P. 16(e); Byrd v. Guess,
137 F.3d 1126, 1132 (9th Cir. 1998); (see also Joint
Pretrial Order 10:17-18, ECF No. 74) (“This order may
not be amended except by court order and based upon the
parties' agreement or to prevent manifest
injustice.”). “In evaluating a motion to amend
the pretrial order, a district court should consider four
factors: (1) the degree of prejudice or surprise to the
defendants if the order is modified; (2) the ability of the
defendants to cure the prejudice; (3) any impact of
modification on the orderly and efficient conduct of the
trial; and (4) any willfulness or bad faith by the party
seeking modification.” Galdamez v. Potter, 415
F.3d 1015, 1020 (9th Cir. 2005) (citing Byrd, 137
F.3d at 1132).
considering these factors, if “the court determines
that refusal to allow a modification might result in
injustice while allowance would cause no substantial injury
to the opponent and no more than slight inconvenience to the
court, a modification should ordinarily be allowed.”
United States v. First Nat'l Bank of Circle, 652
F.2d 882, 887 (9th Cir. 1981). The trial judge may exclude
evidence not identified in accordance with the pretrial order
when the party seeking to introduce the evidence offers no
justification for delay. Colvin v. United States,
549 F.2d 1338, 1340 (9th Cir. 1977). In such a case,
“[a]ny injustice resulting from exclusion . . . comes
from [the defaulting party's] own failure properly to
present his case.” Id.
degree of prejudice to Armada is simply too high to justify
amending the Joint Pretrial Order to add the proposed witness
and exhibits. Armada has relied on the Joint Pretrial Order
in preparing its case for trial. (See Resp. 8:5-7,
ECF No. 88). It is therefore immaterial that Armada
originally identified Pitcher as a potential witness in its
Initial Disclosure as Jaynes has given no indication prior to
the instant Motion that it intended to call Pitcher as a
witness. (See Mot. to Amend 2:6-7). Given that
Jaynes' Motion was filed little more than a month before
trial, the Court finds that amendment at this late stage
would cause a “substantial injury” to Armada.
First Nat. Bank of Circle, 652 F.2d at 887.
Jaynes provides no justification for the delay in amending
the Joint Pretrial Order. Instead, Jaynes simply claims that
“[a]s a result of the tens of thousands of documents in
this matter, Jaynes inadvertently failed to disclose Mr.
Pitcher and these additional Documents.” (Mot. to Amend
5:2-4, ECF No. 81). While this explanation might be relevant
to Jaynes' failure to disclose the exhibits, it hardly
explains why Jaynes failed to disclose Pitcher until this
late date. Further, it does not appear to the Court that the
presence of “tens of thousands of documents”
makes this case so complex or unique as to justify
Jaynes' oversight in this instance. Jaynes' flimsy
justification suggests trial by ambush rather than
inadvertence. See Shakespear v. Wal-Mart Stores,
Inc., No. 2:12-cv-01064-MMD, 2013 WL 6498898, at *4 (D.
Nev. Dec. 10, 2013) (“[A]lthough there is a public
policy to hear cases on their merits, there is also a public
policy against trial by ambush.”). As the Ninth Circuit
has repeatedly noted, any injustice resulting from exclusion
in such situations comes from the party's own failure to
properly present his case. See, e.g., Delta
Sys., Inc. v. TRW, 874 F.2d 815 (9th Cir. 1989);
United States v. Lummi Indian Tribe, 841 F.2d 317,
320 (9th Cir. 1988); Colvin, 549 F.2d at 1340.
both parties agree that at least some of the proposed
exhibits are redundant of timely disclosed exhibits.
(See Mot. to Am. 4:10-11); (Resp. 10:9-10).
Accordingly, any prejudice to Jaynes in excluding these
exhibits is minimal. Based on the foregoing, the Court
therefore DENIES Jaynes' Motion to Amend.
HEREBY ORDERED that Jaynes' Motion to Amend the Joint