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 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") hereby moves to strike portions of Defendant Charles Schwab Corporation's ("Schwab") Reply in Support of Summary Judgment Re: Liability and Reply in Support of Summary Judgment Re: Damages. To support summary judgment, Schwab relies on inadmissible hearsay and improperly introduces new evidence and arguments that were not included in its initial motions for summary judgment. Such evidence cannot be considered when deciding Schwab's Motions. Johnson's Motion to Strike is supported by the accompanying Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES SCHWAB MAY NOT INTRODUCE NEW EVIDENCE OR ARGUMENTS IN ITS REPLY. A moving party cannot raise arguments in its reply brief that it failed to raise in the initial motion. 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
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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). Moving parties are also prohibited from introducing "new facts" or evidence in their reply brief. Green v. Baca, 306 F.Supp.2d 903, 914 n.45 (C.D.Cal. 2004); U.S. v. Los Angeles County, 2005 WL 2089216 (E.D.Cal.) (citing Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 894-895 (1990)). Furthermore, all evidence submitted in support of a motion for summary judgment must be admissible under the Federal Rules of Evidence. See Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) (only admissible evidence can be considered in ruling on a motion for summary judgment). In this regard, inadmissible testimony in pleadings and affidavits purporting to support or oppose summary judgment motions must be struck. See Id. Hearsay statements are inadmissible evidence and may not be considered when deciding on a motion for summary judgment. See Fed.R.Evid. 802; Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). Similarly, documents submitted as "evidence" without authentication should be disregarded. In re Citric Acid Litig., 191 F.3d 1090, 1101 (9th Cir. 1999) cert. denied, 529 U.S. 1037, 120 S.Ct. 1531. The following exhibits and/or factual allegations must be stricken because they present new and inadmissible evidence: A. Reply in Support of Motion for Summary Judgment Re: Liability. 1. Exhibit A - Pages from National Labor Relations Board Proceedings. Accompanying allegations: pp. 4:13-17 and 10:26-27.
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Reason for exclusion: New evidence, hearsay. Exhibit B - Pages from deposition of Joel Price. Accompanying allegations: pg. 12:14-17 Reason for exclusion: New evidence, hearsay. Allegation: pp. 3:25-28 to 4:1. "Although Plaintiff reported that she had an "HR" issue with Steinert, she did so only while she was being reprimanded for behaving inappropriately toward a manager and just two weeks after she and her co-worker/lover, Brad Allen, suspected Steiner of trying to tell Allen's wife about the affair." Reason for exclusion: Lack of relevance, facts not known or considered by decision makers. Allegation: pp. 7:13-22. Reason for exclusion: Hearsay, lack of relevance, prejudicial value outweighs probative value.

Reply in Support of Motion for Summary Judgment Re: Damages. Exhibit A - Alex Optical, Inc. Benefits Offering. Accompanying allegations: pp. 2:17-20 Reason for exclusion: New evidence; lacks foundation. Exhibit B - Affidavit of Valerie Allaire. Accompanying allegations: pg. 3:1-4 Reason for exclusion: New evidence, hearsay. Exhibit C - Pages from the Deposition of Marcela Johnson Accompanying allegations: pg. 5:4-12. Reason for exclusion: New evidence. Exhibit D - Pages from the Deposition of Joel Price. Accompanying allegations: pg. 8:3-14. Reason: New evidence, hearsay. Exhibit E - Pages from the deposition of Tammy Kornegay-Hodges. Accompanying allegations: pg. 9:4-5. Reason for exclusion: New evidence, foundation. Exhibit E is not what it purports to be. It is labeled as portions of Hodges' deposition, but it appears to be NLRB testimony.

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For the foregoing reasons, Johnson respectfully requests this Court to strike the above exhibits and allegations. RESPECTFULLY SUBMITTED this 26th day of June, 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 26th day of June, 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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