Free Response to Motion - District Court of Arizona - Arizona

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Tibor Nagy, Jr. (#007465) Erica Rocush (#021297) SNELL & WILMER L.L.P. One South Church Avenue, Suite 1500 Tucson, AZ 85701-1630 Telephone: (520) 882-1200 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff and,

No. CV'03 1210 PHX PGR
DEFENDANTS' RESPONSE TO PLAINTIFF EEOC'S MOTION TO STRIKE OR EXCLUDE EVIDENCE OFFERED BY DEFENDANT REGARDING SETTLEMENT DISCUSSIONS AND PLAINTIFFINTERVENOR MILES' JOINDER IN PLAINTIFF EEOC'S MOTION TO STRIKE OR EXCLUDE EVIDENCE OFFERED BY DEFENDANT REGARDING SETTLEMENT DISCUSSIONS

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KELLEY J. MILES,
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Plaintiff-Intervenor,
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v.
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THE BOEING COMPANY, a Delaware corporation, and BOEING AEROSPACE OPERATIONS, INC., a Delaware corporation, Defendants.

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Defendants The Boeing Company and Boeing Aerospace Operations, Inc. (collectively, "Boeing" or "Defendant"), by and through undersigned counsel, hereby respond to Plaintiff EEOC's Motion to Strike or Exclude Evidence Offered by Defendant Regarding Settlement Discussions ("Motion to Strike") and PlaintiffIntervenor Miles's Joinder in the Motion to Strike ("Joinder"). In the Motion to Strike and Joinder, Plaintiff and Plaintiff-Intervenor (collectively, "Plaintiffs") argue that Boeing's discussion of the settlement negotiations between the parties should be stricken from Boeing's Memorandum of Points and Authorities in Support of

Case 2:03-cv-01210-PGR

Document 156

Filed 01/11/2006

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Defendants' Motion for Award of Attorneys' Fees ("Motion for Attorneys' Fees") pursuant to either Rules 402, 403 and/or 408, Fed.R.Evid., and because the parties entered into an Agreement to Mediate which stated that the settlement negotiations between the parties are inadmissible in any legal proceeding.1 Boeing included a discussion of the settlement negotiations between the parties because both the Eleventh and Third Circuits have identified as one of the relevant factors for determining whether to award a prevailing defendant attorneys' fees under 42 U.S.C. § 2000e-5(k) is "whether the defendant offered to settle." See Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005); EEOC v. L.B. Foster Co., 123 F.3d 746, 751 (3d Cir. 1997) (quoting Sullivan v. School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985). Based on the reasoning of these cases, it was believed that providing the context of any settlement offer made by Boeing would assist the Court in determining the "frivolousness" of Plaintiffs' continued litigation of their claims. Nonetheless, after closely considering the relevant authorities, and the arguments contained in the Motion to Strike and Joinder, Boeing is willing to concede that its discussion of Plaintiffs' settlement offers and/or responses to Boeing's settlement offers should not have been included in its Motion for Attorneys' Fees. Nevertheless, the fact that Boeing offered to settle this case and the amount of that settlement offer remain relevant considerations.2 See, e.g., Quintana, 414 F.3d at Boeing expresses its sincere regret to the extent that any of its discussion in the Motion for Attorneys' Fees infringed on the cited provision of the Agreement to Mediate. Counsel for Boeing genuinely overlooked the existence of this broad nondisclosure provision when drafting its Motion for Attorneys' Fees. Because the cited federal decisions clearly determined that settlement offers were both admissible and relevant to the issue of whether to award attorneys' fees to a prevailing defendant in a Title VII action, undersigned counsel neglected to review the mediation agreement, including its non-disclosure provision, much less to determine its applicability in this situation. 2 Plaintiffs do not dispute that Boeing made a settlement offer nor do they dispute the amount of that offer.
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1310 (stating that "the amount of the [settlement] offer is a necessary factor in evaluating whether a settlement offer militates against a determination of frivolity."). Plaintiffs concede that the Eleventh Circuit considers as a relevant factor "whether Defendants made an offer, and if available, the amount of the offer, to determine whether the amount of the offer supports a conclusion that the claim is not frivolous." (Motion to Strike at p. 3). Based on the foregoing, Boeing hereby withdraws its entire discussion contained in Section II.B.2 of its Motion for Attorneys' Fees, except for the statement that "Boeing made a [settlement] offer of $2,500.00 to settle the entire case." Boeing also withdraws Exhibit 2 attached to the Motion for Attorneys' Fees. Finally, neither Boeing's settlement offer nor the related negotiations between the parties is subject to exclusion under Rule 402, 403, or 408, Fed.R.Evid. The settlement discussion was not offered in order to establish the "liability for or invalidity of" Plaintiffs' claims (the lynchpin for exclusion under Rule 408), as the validity of Plaintiff's claims was already determined by this Court when its granted Boeing's Motion for Summary Judgment. Furthermore, because the settlement negotiations are relevant to the limited issue of whether to award attorneys fees, and the discussion regarding them did not unfairly prejudice Plaintiffs in any way, Rules 402 and 403 Fed.R.Evid. do not apply here. In any case, with only the fact and amount of Boeing's settlement offer remaining before the Court, Defendants have no basis to exclude that limited information pursuant to either of these evidentiary rules.

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DATED this 11th day of January, 2006. SNELL & WILMER L.L.P.

By

s/ Tibor Nagy, Jr. Tibor Nagy, Jr. Erica Rocush One South Church Avenue Suite 1500 Tucson, AZ 85701-1630 Attorneys for Defendants

Certificate of Service I hereby certify that on January 11, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse Equal Employment Opportunity Commission 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-2504 Attorneys for Plaintiff EEOC Richard L. Green Paul D. Friedman Van O'Steen and Partners 3605 North Seventh Avenue Phoenix, AZ 85013 Attorneys for Plaintiff-Intervenor Miles

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____s/ Tibor Nagy, Jr.
400269.2

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