Free Motion in Limine - District Court of Arizona - Arizona

1 Dan W. Goldfine (#018788)
Richard G. Erickson (#019066)
2 SNELL & WILMER 1..1..1¤.
One Arizona Center
3 400 East Van Buren Street
Phoenix, AZ 85004-2202
4 Telephone: (602) 382-6000
Facsimile: (602) 382-6070
5 d oldfine swlaw.com
rerickson swlaw.com
6 Attomeys for Plaintiffs
7 and
8 Grant Woods, Esq. (#006106)
GRANT WOODS, P.C.
` 9 1726 North Seventh Street
Phoenix, Arizona 85006
10 Telephone: (602) 258-2599
Facsimile: (602) 258-5070
1 1 [email protected]
Attomeys for Plaintiffs and Counterdefendants
5 12 and Third Party Defendants
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§ 14 IN THE UNITED STATES DISTRICT COURT
fg W 15 FOR THE DISTRICT OF ARIZONA
T;
(E 16 Meritage Homes Corporation, et al.,
5 Case No. CV-04-0384-PHX-ROS
17 Plaintiffs,
PLAINTIFFS’ MOTION IN LIMINE RE
18 v. TESTIMONY AND ARGUMENT ABOUT
ROBERT SARVER
19 Ricky Lee Hancock, et al.,
(Assigned to the
20 Defendants. Honorable Roslyn O. Silver)
21 AND RELATED COUNTERCLAIMS
AND THIRD PARTY CLAIMS
22
23 Plaintiffs move to exclude the appearance of Robert Sarver, a Meritage Board
24 member and majority owner/managing partner of the Phoenix Suns, as a witness in this
25 case because the Defendant’s failed to properly disclose Mr. Sarver as a witness as
26 required by this Court’s February 26, 2006 Order and the Federal Rules of Civil A
27 Procedure. Further, Mr. Sarver proposed testimony, as outlined by Defendant Hancock in
28 his Witness List to the Joint Proposed Pretrial Order, is not relevant to the issues in this
Case 2:04-cv—00384—ROS Document 526 Filed 08/30/2007 Page1 014

1 case, but rather, Mr. Sarver is being called as a witness for the sole purpose of harassment.
2 I. FAILURE TO DISCLOSE
3 This Court ordered Defendant Hancock to supplement his list of witnesses by "no
4 later than May 1, 2006." See February 23, 2006 Order at Section C (Item # 277). The
5 Court’s February 23, 2006 Order included strong language reminding the Defendant that:
6 failure to timely supplement pursuant to Rule 26(e), including
attempts to_ include witnesses _and exhibits in the Proposed
7 Final Pretrial Order or at trial that were not previously
disclosed 1n a timely manner may result in the exclusion of
8 such evidence at trial or the imposition of other sanctions
.including dismissal and the imposition of default pursuant to
9 FRCP 37, the Local Rules of the District Court, and the
10 inherent power of the Court.
ll Amended Joint Rule 16 Scheduling Order at 3:22-26 (Feb. 23, 2006). Fed. R. Civ. P.
12 26(a)(l)(A) requires a party to initially disclose the names of witnesses who may be used
gi 13 to support the party’s claims or defenses; Fed. R Civ. P. 26(e) requires a party to
14 supplement their initial disclosure when a party leams its initial disclosure was
15 incomplete. Mr. Sarver’s name does not appear in any of Greg Hancock’s disclosures.
gl 16 The Court’s Amended Joint Rule 16 Scheduling Order at Section C expressly required
6 17 advance witness disclosures and supplementations more than a year ago.
18 Here, Hancock did not disclose Mr. Sarver as a witness or person with knowledge
19 in his initial disclosures. Hancock did not supplement his list of witnesses or persons with
20 knowledge with Mr. Sarver.
21 In fact, Sarver did not show up on any witness list until the submission of
22 Defendant’s witness list as part of the Joint Proposed Pretrial Order that Defendant
23 Hancock first provided t0 Meritage on August 27, 2006. In other words, Hancock never
24 disclosed Sarver during the disclosure and discovery period. He then waited a year after
25 the close of discovery to disclose Sarver.
26 This Court should bar Greg Hancock from calling Robert Sarver as a witness
27 because Hancock failed to heed the Court’s warning, in its February 23, 2006 Order, that
28 attempting to include an undisclosed witness in the Joint Proposed Pretrial Order could
Case 2:04-cv—00384—FlOS Document 5202 _ Filed 08/30/2007 Page 2 of 4

1 result in his exclusion from the trial.
2 II. HARASSMENT
3 Greg Hancock’s eleventh hour attempt to call Mr. Sarver as a witness is perplexing
4 at best considering Mr. Sarver does not have any knowledge relevant to the facts of the
5 dispute between the parties. Greg Hancock’s inclusion of Mr. Sarver as a witness leads to
6 the single conclusion that Hancock intends to call Mr. Sarver as a harassment tactic or to
7 create a side show to distract from the facts at issue in the case. Thus, the Court should
8 preclude the Defendants from calling Mr. Sarver as a witness in this case. See Rule 403,
9 Fed. R. Evid.; see also Rule 611 Fed. R. Evid.
10 Accordingly, Meritage requests an order in limine barring Defendants from calling
11 Mr. Sarver as a witness. A
5 12 RESPECTFULLY SUBMITTED this 30th day of August, 2007.
M 2..
§ x 13 SNELL & w1LMER L.L.P.
E 5 14
$25 J °
: I5 By s/ Dan W. Goldfine
fj Dan W. Goldfine
rn EL 16 Richard G. Erickson
¤ Snell & Wilmer, L.L.P.
17 ‘ One Arizona Center
400 E. Van Buren Street
18 Phoenix, Arizona 85004-2202
19 g Attorneys for Meritage
20 and
21 V
22 By s/ Grant Woods
_ Grant Woods, Esq.
23 GRANT WOODS, P.C.
1726 North Seventh Street
24 Phoenix, Arizona 85006
Attorneys for Meritage
25
26 l 2
27
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Case 2:04-cv—00384—ROS Document 52-63 _ Filed 08/30/2007 Page 3 of 4

1 CERTIFICATE OF SERVICE
2 I hereby certify that on August 30, 2007, I electronically transmitted the foregoing
3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
4 Notice of Electronic Filing to the following CM/ECF registrants:
5 Ivan K. Mathew
Mathew & Mathew, P.C.
6 3300 North Central Avenue, Suite 1730
Phoenix, Arizona 85012
7 Attomeys for Rick Hancock, Brenda Hancock, Rick Hancock Homes,
L.L.C., and RLH Development, L.L.C.
8
Robert M. Frisbee
9 Frisbee & Bostock, PLC . _
1747 East Morton Avenue
10 Suite 108
Phoenix, AZ 85020
11 Attomeys for Greg Hancock
5 12 Kenneth J. Sherk
:.. gr_ Timothy J. Burke
E 13 Fennemore Craig, P.C.
;·_ gujgg 3003 N. Central Ave.
g Q 14 Suite 2600
0.6 3 B Phoenix, AZ 85012-2913
Z I 15 Attomeys for Defendant Snell & Wilmer, L.L.P. in State Court Action
cu 2% ·
cl 1 16
m 5 s/ Ashley Brown
17
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