Free Uncategorized - District Court of Arizona - Arizona

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Quarles & Brady Streich Lang LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-JWS PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO STRIKE NEW ARGUMENTS RAISED IN DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR COURT ORDER TO SECURE RECORDS RELATING TO ALLEGED DAMAGES

Plaintiff's only motive for filing her Motion to Strike is to preclude Schwab from raising arguments in the reply brief that it failed to raise in the initial motion - that Schwab seeks discovery of files containing information germane to "Plaintiff's employment history and mitigation." See Omega Environmental, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1167 (9th Cir. 1997), cert. denied, 525 U.S. 812, 119 S.Ct. 46, 142 L.Ed.2d 36 (1998) (declining to address argument raised for first time in reply brief); United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (courts generally decline to consider arguments raised for the first time in a reply brief); Eberle v. City of Anaheim, 901 F.2d 814, 817 (9th Cir. 1990) (refusing to consider argument raised for first time in reply brief). See also United States v. Boyce, 148 F. Supp.2d 1069, 1085 (S.D. Cal. 2001) (argument not presented in moving papers should not be considered; it is improper for party to raise new argument in reply brief); Competitive Technologies, Inc. v. Fujitsu Limited, 333 F.Supp.2d 858 (N.D.Cal. 2004).

Case 2:04-cv-00790-EHC

Document 86

Filed 01/03/2006

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Schwab argues that it seeks to locate earnings records that relate to its funding of Plaintiff's unemployment and workers' compensation insurance. This argument fails for two reasons. First, Schwab has not introduced any evidence to show that it was the sole contributor to unemployment or workers' compensation funds from which Plaintiff may or may not have received benefits. See Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981).1 Second, Schwab possess, or should possess, information regarding unemployment and workers' compensation that was funded by Schwab and paid to Ms. Johnson, thereby making its request unnecessary and an inefficient use of resources. For the foregoing reasons, Plaintiff respectfully requests this Court to strike all references to the new argument regarding "plaintiff's employment history and mitigation" found at the following page and line numbers in Schwab's reply: pp. 1:18-21; 2:8-9; 3:84:11. RESPECTFULLY SUBMITTED this 3rd day of January, 2006. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

Schwab's argument that the law in the Ninth Circuit is unclear on this issue is wrong. In Kaufmann v. Sidereal Corporation, 695 F.2d 343 (9th Cir. 1983), a case brought under Title VII, the Ninth Circuit held that "unemployment benefits received by a successful plaintiff in an employment discrimination action are not offsets against a backpay award." Id. at 347.
Case 2:04-cv-00790-EHC Document 86
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I hereby certify that on the 3rd day of January, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: Joseph T. Clees Christopher Mason Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Rd., Suite 800 Phoenix, AZ 85016 s/Lisa Young
QBPHX\1981217.1

Case 2:04-cv-00790-EHC

Document 86

-3Filed 01/03/2006

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