Free Response - District Court of Arizona - Arizona

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J. Robert Tolman ­ 003864 TOLMAN, BRADSHAW & JOHNSON 1019 S. Stapley Drive Mesa, Arizona 85204 Telephone (480) 833-7527 Facsimile (480) 344-4592 Email: [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA NO. CV-04-0500-PHX-ROS MARIA CAUSTON, individually and on behalf of GIANA CAUSTON and MARINA SHEPPARD, Plaintiffs, vs. CITY OF CHANDLER, a municipal corporation; JOHN M. CARBOUN and RANDLE L. MEEKER, Defendants. Plaintiffs Maria Causton, individually and on behalf of Giana Causton and Marina Sheppard, through counsel undersigned, hereby respond in opposition to Defendants' Motion to Strike Specific Portions of Plaintiff's Separate Statement of Facts Motion for Summary Judgment. This Response is supported by the accompanying Memorandum of Points and Authorities. DATED this 12th day of October, 2005. TOLMAN, BRADSHAW & JOHNSON, LLC By_s/ J. Robert Tolman______________ J. Robert Tolman 1019 S. Stapley Drive Mesa, AZ 85204 Attorney for Plaintiff PLAINTIFFS' RESPONSE TO MOTION TO STRIKE SPECIFIC PORTIONS OF PLAINTIFF'S SEPARATE STATEMENT OF FACTS

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. Rule 12(f) Federal Rules of Civil Procedure, provides that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The Rule does not specifically apply to a statement of facts filed in support of a response to a motion for summary judgment. Assuming application of the Rule, Plaintiffs have not included redundant, immaterial, impertinent, or scandalous matters in Plaintiffs' Separate Statement of Facts in Support of their Response to Defendant City of Chandler's Motion for Summary Judgment. II. STATEMENTS OF FACT. 1. It is true that Plaintiffs have conducted no discovery in this case. The parties have

exchanged disclosure statements. Plaintiffs have responded to written discovery. Defendants have taken the deposition of Plaintiff's expert witness, Michael M. Cosgrove, Ph.D. Defendants have responded to no written discovery and Plaintiffs have taken no depositions. It is also true that discovery is stayed pursuant to a stipulation of the parties. Statement of Fact No. 1 simply places the Motion for Summary Judgment in the context of the current stage of the litigation. 2. The affidavits of Officers Carboun and Meeker were prepared and submitted during

the stay and that Plaintiffs have not had an opportunity to examine the witnesses. The disclosures, the Plaintiffs' responses to discovery and the deposition of Plaintiffs' expert witness occurred prior to the preparation and submission of the affidavits. The statement is true and places the Motion for Summary Judgment in the context of the stage of litigation. 3. Statement of Facts No. 3 and No. 4 are true, undisputed and foundational to an

analysis of the conduct of the Officers. 4. Statement of Fact Nos. 5 through No. 8 are true. Reference is made to specific facts

that are relevant to a determination of the issues on summary judgment. The full text of the interviews are attached.

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5.

Statement of Fact Nos. 9 and 10 are true and fairly summarize the opinions of Dr.

Cosgrove. Counsel for Defendants is simply arguing the facts in the Motion to Strike. 6. Statement of Fact Nos. 11, 12 and 13 are true and are directly related to the state of

mind and conduct of Eric Causton and the officers and an evaluation of the issues for determination on summary judgment. 7. Statement of Fact No. 15 is true and relevant to an evaluation of the facts and

inferences to be drawn from the facts 8. Statement of Fact No. 16 is true. It is relevant to timing and the conduct of the

officers. Counsel is simply arguing the facts in the Motion to Strike. 9. Statement of Fact Nos. 17 and 18 are true. They are relevant to an evaluation of the

facts and inferences to be drawn from the facts. 10. Statement of Fact Nos. 19 and 20 are true. They are relevant to an evaluation of the

facts and inferences to be drawn from the facts. 11. Statement of Fact No. 21 is an accurate summary from the affidavit. Counsel for

Defendants is arguing the facts and demonstrates the dispute of facts and and/or inferences that exist in the case. 12. Statement of Fact No. 22 is true. The cases cited by Defendants do not hold that the

opinion of an expert is irrelevant. The expert's opinions are factors to be considered in determining "whether a reasonable officer could have believed that his conduct was justified." Billington v. Smith, 292 F.3d 1177, 1189 (9th cir. 2002). If Dr. Cosgrove's opinions are irrelevant, the defense has wasted a significant amount of time and money and the motion for summary judgment should have been filed 10 months ago. 13. Statement of Fact No. 23 is true. It is illustrative of the existence of factual issues

which preclude a finding as a matter of law that Defendants are immune. 14. Statement of Fact No. 24 is true. It is not based on inadmissible hearsay. It is the

sworn testimony of the individual who served the notices of claim by delivering a copy to an

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individual at the Chandler Police Department who specifically stated that she was authorized to accept service of the notice of claim on behalf of the Defendant Officers. 15. Statement of Fact No. 25 is true. The relevance is that additional factual information

exists which may clarify the conduct of Eric Causton, the Defendant Officers and the City of Chandler. If the Court finds that the undisputed facts, taken in a light most favorable to the Plaintiffs, clearly establish an entitlement to immunity, the facts and/or conclusions contained in the internal affairs investigation and the shooting review board are irrelevant. It is important, however, to understand that the conduct of the Defendants may be further clarified through additional discovery which Plaintiffs assert is necessary to a full evaluation of the claim on the merits. DATED this 12th day of October, 2005. TOLMAN, BRADSHAW & JOHNSON, LLC By_s/ J. Robert Tolman______________ J. Robert Tolman 1019 S. Stapley Drive Mesa, AZ 85204 Attorney for Plaintiff ORIGINAL of the foregoing filed with the Clerk of the Court this 12th day of October, 2005.

COPY of the foregoing delivered this 12th day of October, to: Judge Honorable Roslyn O. Silver

COPY of the foregoing mailed this 12th day of October to:
Robert Grasso, Jr., Esq. GRASSO LAW FIRM, P.C. Jackson Plaza 4600 South Mill Avenue, Ste 125

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Tempe, AZ 85282 Email: [email protected] By_s/ J. Robert Tolman______________

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