In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back.
The employee won her whistleblower claim after a jury trial in I vie v. Astrazenica Pharmaceuticals LP . No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter of law, and won. The grounds: the employee failed to prove a sufficient factual nexus to Oregon to establish a claim under the state’s whistleblower statute.
Tough break for the employee.
But on appeal, the employee argued that Astrazenica never raised its “Oregon-nexus argument” in the parties’ joint pretrial order. So Astrazenia forfeited that argument.
And the 9th Circuit agreed, albeit in a split decision. The local rule requires the parties to submit in the joint pretrial order a “statement of each claim and defense to that claim.” And the joint pretrial order “amends the pleadings.” See also Fed. R. Civ. P. 16(d) (providing that pretrial order “controls the course of the action unless the court modifies it”), 16(e) (“The court may modify the [pretrial] order issued after a final pretrial conference only to avoid manifest injustice.”).
“We have repeatedly emphasized that “a party may not ‘offer evidence or advance theories at the trial which are not included in the [pretrial] order or which contradict its terms.’ ” El-Hakem v. BJY Inc., 415 F.3d 1068, 1077 (9th Cir. 2005)2 (quoting United States v. First Nat'l Bank of Circle, 652 F.2d 882, 886 (9th Cir. 1981)). This requirement extends to “any and all theories,” id., which means that “[a] defendant must enumerate its defenses in a pretrial order even if the plaintiff has the burden of proof,” id. (citing S. Cal. Retail Clerks Union v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984)).”
Astrazenica argued that the district court, by granting its motion for JMOL, impliedly amended the pretrial order to include the defense. But that doesn’t work, the majority concluded. While the district court did have discretion to amend the joint pretrial order, it would need to do that explicitly, and give the plaintiff an opportunity to respond to the belatedly-asserted defense. That didn’t happen here.
Dissenting, Judge Bumatay noted that, while Astrazenica did not “explicitly” identify the Oregon-nexus defense, it did assert a “failure to state a claim” defense and pleaded that the employee was not entitled to any relief on the Oregon whistleblower claim. The district court concluded that the lack of explicit mention of the Oregon-nexus defense did not prejudice the employee.
Coming to the point, Judge Bumatay concluded: “That doesn't seem wrong—Ivie hasn't proffered any additional evidence that she would have admitted at trial if she had more express notice of the extraterritorial defense. The district court's ruling then seems to fall within its discretion.”
Judge Bumatay also noted that, while the majority is right that the joint pretrial statement should not be amended after-the-fact if it would prejudice the plaintiff, the majority did not point to any prejudice here. And yet Astrazenica was deprived of a meritorious defense.
Judge Bumatay wonders: “So I'm not sure why *El-Hakem”—and its provision that a defense is preserved if the pretrial order makes any reference to it—*doesn't apply here.”
Takeaway: Pay close attention to the joint pretrial orders before a trial in federal district court. Local rules typically provide that any claims or defenses not mentioned will be deemed waived or forfeited.
But on the other hand, I would not count this result is typical. For every precedent supporting a forfeiture, there is a precedent supporting an exception. If you are going to argue forfeiture, be prepared to show how allowing the belated assertion would result in prejudice. That was not shown here, which makes the majority’s result surprising—and suggests Judge Bumatay is probably correct in his dissent.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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