Free Motion in Limine - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 Morten Ave. E. Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 [email protected] 4 Attorneys for Defendant Greg Hancock
1 5 6 7 8 9 10 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MERITAGE CORPORATION, a Maryland corporation Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NO. CIV 04-0384-PHX-ROS

GREG HANCOCK, an individual; RICK HANCOCK, an individual; and 12 RICK HANCOCK HOMES, L.L.C., an Arizona Corporation,
13

DEFENDANT GREG HANCOCK'S MOTION IN LIMINE TO EXCLUDE THE DEPOSITION TESTIMONY OF IAN McCARTHY AND THE BEAZER ARBITRATION

Defendants.
14 15 16

Defendant Greg Hancock, by and through undersigned counsel, hereby moves the
17

Court for its Order precluding the testimony of Ian McCarthy and any reference to Greg
18

Hancock's mediation with Beazer, with whom he was employed more than ten years ago.
19

In its witness list, Meritage states that Ian McCarthy will appear in person and says, "Mr.
20

McCarthy was Greg Hancock's boss at Beazer, will testify about Greg Hancock's conduct
21

at Beazer and what Greg Hancock did in leaving Beazer."
22

Hancock does not believe that McCarthy will appear at trial because he is not a
23

resident of Arizona, and is fully immersed in Beazer's dire financial circumstances.
24

However, some of his assertions are contained in an arbitration file between Beazer and
25

Hancock, a matter that was settled many years ago with a confidential settlement agreement.
26

Case 2:04-cv-00384-ROS

Document 523

Filed 08/29/2007

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Meritage was provided the entire arbitration file in a document production, and knows full well that the dispute did not concern any of its claims in this lawsuit. There was no claim by Beazer that Hancock didn't do his job adequately, or bought land for his account. Rather, Beazer alleged that Hancock solicited employees away from Beazer in violation of the non-solicitation agreement. The Court should know that, like Meritage's allegations here, the Beazer allegation was untrue. Dozens of employees left Beazer voluntarily to work for Hancock in his new start-up venture, and not even one of them testified that Hancock had solicited them. In any event, McCarthy's testimony would be inadmissable under FRE 408, as it necessarily entails evidence of the settlement, and does not fit within the exceptions to 408. Further, the proposed evidence is violative of FRE 403, in that its probative value is substantially outweighed by the danger of prejudice, confusion of issues, misleading the jury, and a waste of time. Ian McCarthy and the Beazer matter should be excluded.

RESPECTFULLY SUBMITTED this 28th day of August, 2007.

FRISBEE & BOSTOCK, PLC /s/ Robert M. Frisbee Robert M. Frisbee Attorney for Greg Hancock

The foregoing Motion in Limine was electronically filed and served this 29th day of August, 2007, and copy 23 thereof mailed to the Honorable Judge Silver.
22 24 25 26 2 Case 2:04-cv-00384-ROS Document 523 Filed 08/29/2007 Page 2 of 2

/s/ Robert M. Frisbee