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]) Luís F. Ramírez (#022653) ([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 EVIDENCE IN DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT RE: LIABILITY AND REPLY IN SUPPORT OF SUMMARY JUDGMENT RE: DAMAGES

Plaintiff Marcela Johnson ("Johnson") replies in support of her Motion to Strike New Evidence of Defendant's Reply In Support of Summary Judgment Re: Liability and Reply in Support of Summary Judgment Re: Damages ("Motion to Strike"). I. JOHNSON'S MOTION TO STRIKE IS PROPER. It is well-settled that all evidence submitted in support of a motion for summary judgment must be admissible under the Federal Rules of Evidence. Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988). Inadmissible evidence includes hearsay statements and documents submitted as "evidence" without authentication. Fed.R.Evid. 802; Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); In re Citric Acid Litig., 191 F.3d 1090, 1101 (9th Cir. 1999) cert. denied, 529 U.S. 1037, 120 S.Ct. 1531. Similarly, under settled Ninth Circuit law, it is improper to introduce new arguments and/or new evidence in a reply brief. Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 843 n. 6 (9th Cir.2004) ("[w]e decline to

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consider new issues raised for the first time in a reply brief"); Schwartz v. Upper Deck Co., 183 F.R.D. 672, 682 (S.D.Cal.1999) ("[i]t is well accepted that raising of new issues and submission of new facts in [a] reply brief is improper") (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)). Schwab has introduced new evidence and exhibits in its replies in support of summary judgment and seeks to preclude Johnson from objecting to the admissibility of such evidence. In doing so, Schwab improperly relies on Mannick v. Kaiser Foundation Health Plan, 2006 WL 1626909 (N.D. Cal. June 9, 2006) and argues that Johnson's Motion to Strike is a surreply. However, in Mannick, the court found that the motion at issue presented counterarguments and was thus a surreply. Id. at 21. In the present case, Johnson does not present any counterarguments or otherwise comment on the merits of Schwab's summary judgment arguments. Johnson's Motion to Strike is specifically limited to pointing out inadmissible evidence and providing the legal rule that calls for its exclusion. Schwab's attempt to preclude Johnson's Motion to Strike runs counter to all prevailing principles concerning a party's right to object to inadmissible evidence. Schwab suggests to the Court that it has the privilege of attaching any and all exhibits to its reply briefs, regardless of whether these exhibits violate the rules of evidence. Johnson's Motion to Strike properly brings to the Court's attention inadmissible evidence that should not be considered in summary judgment. II. THE NEW EXHIBITS SHOULD BE EXCLUDED. Despite the fact that Johnson's Motion to Strike clearly and unambiguously indicates the legal rules violated by each of the new exhibits in Schwab's reply briefs, Schwab's Response persists in misrepresenting Johnson's arguments. Schwab ignores the distinct reasons given in the Motion to Strike and mischaracterizes all of Johnson's objections as being based on "new arguments." Relying on this mischaracterization, Schwab inflammatorily classifies Johnson as disingenuine and accuses Johnson of making

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"blatant misrepresentations" to the Court.

Such lack of comity is unsupported and

unwarranted. Johnson's reasons for excluding Schwab's new Exhibits are well supported. A. Reply in Support of Motion for Summary Judgment Re: Liability. 1. Exhibit A (Pages from National Labor Relations Board Proceedings) is inadmissible.1

Exhibit A and its accompanying allegations should be excluded as hearsay. Exhibit A presents the testimony of Tammy Kornegay-Hodges concerning statements that Ed Steinert and Teresa McClung made to her. [Exhibit A, Reply in Support of Summary Judgment re: Liability at Dkt. 157, pp. 187: 3-17, 209: 3-25]. The referenced testimony is offered for the truth of what these third parties stated. [Dkt. 157 at pp. 4:1317 and 10:26-27]. As such, Exhibit A is inadmissible hearsay. Moreover, Exhibit A and its accompanying factual allegations were not included in Schwab's Statement of Facts and were improperly attached to Schwab's reply brief. Thus, the Exhibit and accompanying allegations are new evidence that improperly supplement Schwab's Statement of Facts. 2. Exhibit B (Pages from Deposition of Joel Price) is inadmissible.2

Exhibit B and its accompanying allegations should be excluded as hearsay. Exhibit B presents the testimony of Joel Price concerning statements that Ed Steinert made to him. [Dkt. 157, Exhibit B, pp. 17: 13-25, 18: 1-5]. The referenced testimony is specifically offered for the truth of what Ed Steinert stated. [Dkt. 157 at p. 12:14-17]. As such, it is inadmissible hearsay. Also, Exhibit B and its accompanying factual allegations were not included in

1

The exhibit referenced in this section is identical to Exhibit E to Schwab's Reply in Support of Motion for Summary Judgment Re: Damages. [See Motion to Strike I. B. 5 at Dkt. 156.] Therefore, Exhibit E to Schwab's Reply in Support of Motion for Summary Judgment Re: Damages should be excluded for the same reasons described in this section. 2 The exhibit referenced in this section is identical to Exhibit D to Schwab's Reply in Support of Motion for Summary Judgment Re: Damages. [See Dkt. 156 I. B. 4]. Therefore, Exhibit D to Schwab's Reply in Support of Motion for Summary Judgment Re: Damages should be excluded for the same reasons described in this section.

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Schwab's Statement of Facts and were improperly attached to Schwab's brief. Thus, they are inadmissible new evidence. Schwab argues that this testimony was provided to rebut an e-mail communication referenced by Johnson's response brief. However, the referenced testimony in Schwab's reply concerns a conversation Joel Price had with Ed Steinert regarding a compact disk dispute. [Dkt. 157, Exhibit B, pp. 17, ll. 13-25, 18, ll. 1-5]. Exhibit B is unrelated to any arguments previously raised in the briefs and should be excluded under this additional basis. 3. Evidence concerning the affair is inadmissible.3

As described in Johnson's pending Motion in Limine Re: Evidence not Considered by the Decision Maker4 evidence of Johnson's personal relationship with Brad Allen is irrelevant and unduly prejudicial. Such evidence should therefore be excluded. Fed. R. Evid. 401, 402, 403, 412. B. Reply in Support of Motion for Summary Judgment Re: Damages. 1. Exhibit A (Alex Optical, Inc. Benefits Offering) is inadmissible.

Exhibit A has not been properly authenticated and lacks foundation. The Exhibit should therefore be excluded. Moreover, Schwab misrepresents Johnson's response brief to justify the introduction of this new exhibit. Schwab argues that Exhibit A is necessary to

demonstrate that Alex Optical offered benefits to Johnson. However, Johnson does not dispute that Alex Optical offered benefits or raise any issue concerning the benefits offered at this job. Johnson's response brief specifically argues that she has been

presently unable to find a job that offers insurance because she is afraid that Schwab will subpoena her employer and cause her further damage. [Response to Motion to Summary Judgment Re: Damages at Dkt. 153, p. 6: 3-8]. Exhibit A is not necessary to rebut any
3

The evidence referenced in this section corresponds to sections I. A. 2 and I. A. 3 of Johnson's Motion to Strike. 4 This Motion to Strike incorporates by reference the arguments made in the Motion in Limine Re: Evidence not Considered by the Decision Maker. Case 2:04-cv-00790-EHC QBPHX\115637.00002\2026573.1 Document 169 Filed 07/24/2006 Page 4 of 6

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argument made by Johnson and should be excluded under this additional basis. 2. Exhibit B (Affidavit of Valerie Allaire) is inadmissible.

Exhibit B consists primarily of Valerie Allaire's conversations with Johnson, Maury Kessler, and an unidentified "client." [See, Dkt. 156, Exhibit B, ¶¶ 15-21, 23-27]. Consequently, Exhibit B is inadmissible hearsay. Moreover, Schwab argues that it introduced Exhibit B to respond to Jonson's new argument in response that her termination from Eye Care Plus was a "business decision." Johnson never raised this argument in its response. It was Schwab who originally alleged in its Statement of Facts that Johnson "was fired as a result of a business decision." [Statement of Facts in Support of Motions for Summary Judgment Re: Liability and Re: Damages at Dkt. 135 ¶ 65 (b)]. Thus, Schwab's reply is actually adopting a new

argument and introducing new evidence to replace allegations made in its own Statement of Facts. Exhibit B should therefore be excluded. 3. Exhibit C (Pages from the Deposition of Marcela Johnson) is inadmissible.

As Schwab admits, Exhibit C introduces new testimony from Johnson's deposition to supplement the facts alleged in its original motion. [See Response to Motion to Strike, 10: 13-14]. Schwab cannot supplement its Statement of Facts with new evidence attached to its reply brief. Exhibit C should therefore be excluded. For the foregoing reasons, Johnson respectfully requests this Court to strike the above exhibits and allegations. // //

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RESPECTFULLY SUBMITTED this 24th day of July, 2006.

QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Luis F. Ramirez Attorneys for Plaintiff Marcela Johnson

I hereby certify that on the 24th day of July, 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, Esq. Karen Gillen Nonnie Shivers Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Rd., Suite 800 Phoenix, AZ 85016 A copy of this document was provided to The Honorable Earl H. Carroll

s/Dawn C. Valdivia

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