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