Trial Delay Denied for Father of Oscar Grant

SAN FRANCISCO (CN) - The father of a man shot and killed by Bay Area Rapid Transit police cannot delay next week's trial on his claims, a federal judge ruled.

Oscar Grant III had been lying facedown and handcuffed on the platform of the Fruitvale station on New Year's Day 2009 when BART officer Johannes Mehserle fatally shot the 22-year-old with a pistol that he allegedly mistook for a Taser.

With Mehserle sentenced to two years in prison, BART reached a settlement in 2010 as to the $50 million lawsuit filed by Grant's mother and daughter. They received $1.3 million and $1.5 million, respectively.

Oscar Grant Jr., the victim's father, meanwhile filed his own lawsuit. Noting last month that his new attorney uncovered evidence of alleged incompetence, Grant asked U.S. District Judge Edward Chen to delay the trial by "two to three months."

The evidence concerns the previous attorney's alleged failure to fight the nomination of mother Wanda Jackson as personal representative of the son's estate.

Chen noted Monday, however, that the elder Grant has spent the last five years litigating his federal case alongside Jackson and friends of his son who witnessed the Fruitvale altercation. The friends' case has even already faced a 9th Circuit appeal .

"Plaintiff has unduly delayed in bringing this motion to amend," Chen wrote. "This case has been pending before this court since August 2009. The current trial date has been set since August 2013. Plaintiff has been represented by counsel throughout these proceedings. He has, through his counsel, participated in this action and the settlement negotiations alongside the action brought by his ex-wife on behalf of Oscar Grant III's estate and at no time sought to amend his complaint to assert any claim other than his denial of familial relationship claim. Additionally, he has never objected to his ex-wife's asserting claims as the personal representative of Oscar Grant III. Now, on the eve of trial, plaintiff seeks to amend his complaint to dramatically expand the scope of his claims and delay the trial accordingly. There is no reason excusing plaintiff's delay in asserting his putative right to prosecute the claims asserted in the motion to amend. To the extent Mr. Grant's prior counsel failed to assert claims or raise arguments that his current counsel feels are important or should have been raised, it is now far too late to assert them."

As additional examples of why the 5-year-old case cannot be delayed, Chen pointed to the waste of court resources and undue prejudice of the other parties. The claims of the young man's estate were furthermore settled years ago by Jackson, who was in a much better position to act as the personal representative than Grant, according to the ruling.

"There is a serious question whether plaintiff, who is incarcerated in a medium security prison, is capable of executing the duties of office of personal representative under state probate law," Chen wrote.

Grant's new attorney, Waukeen McCoy, is also not entitled to a delay to get up to speed in the case, the court found.

"On March 27, 2014, in seeking to be substituted in, McCoy represented to the court that he would be ready and prepared to proceed to trial on this date," Chen wrote. "At the March 27, 2014 hearing, the court stated: 'Now if there is a problem, Mr. McCoy, please let me know immediately, and we're going to have to figure out what to do.' McCoy states he 'took this to be a reasonable gesture from the court that if I had problems in substituting into the case or with preparation for the upcoming trial of June 9, 2014 to let the court know.' McCoy fails to appreciate the word 'immediately' used by the court."

The four-week trial begins June 9.

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