(PC) Martin v. Her ( 2021 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 1] 12 | Smiley Martin, No. Case 2:18-cv-01658-KJM-KJIN 13 Plaintiff, ORDER 14 v. 15 Officer J. Her, 16 Defendant. 17 18 The court’s final pretrial order in this matter listed several undisputed facts and permitted 19 | the parties to object within fourteen days. See FPTO at 2-4, 11. Defendant Officer Her objects 20 | that some of these facts are actually disputed. See Objs., ECF No. 62. He claimed 21 | unambiguously at summary judgment, however, that the same facts were undisputed. Compare 22 | FPTO at 4 with Def.’s Stmt. Undisp. Facts Nos. 18-38, ECF No. 33-7 and with Mem. at 3-4, 23 | ECF No. 33-2. Plaintiff urges the court to hold Officer Her to that previous position. See 24 | generally Resp., ECF No. 63. The court agrees. “[S]tatements of fact contained in a brief may be 25 | considered admissions of the party in the discretion of the district court.” Am. Title Ins. Co. v. 26 | Lacelaw Corp., 861 F.2d 224, 227 (9th Cir. 1988) (emphasis omitted). Officer Her has not 27 | argued that his admissions were accidental or incorrect, and he has not cited evidence that might 28 | create a dispute that could be adjudicated at trial. Cf Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 1 | (Oth Cir. 1995) (“[If] the party making an ostensible judicial admission explains the error. . . , the 2 | trial court must accord the explanation due weight.”). His objections are overruled. 3 IT IS SO ORDERED. 4 DATED: December 3, 2021. [\ (] 5 ( ti / { q_/ CHIEF NT] ED STATES DISTRICT JUDGE 45