Free Response in Support of Motion - District Court of Arizona - Arizona

I GAoNA LAW FIRM
2 A paepessioiut eeapoamieu
3101 NORTH CENTRAL AVE. SUITE 720
,_ PHOENIX, ARIZONA 85012
J
4 (502)230-2635 Fax (602) 230-1377
5 David F. Gaona, State Bar No. 007391
Nicole Seder Cantelme, State Bar No. 021320
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7 Attorneys for Defendants
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IN THE- UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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I] MONICA ORTEGA-GUERIN, No. CV04-0289 PHX MHM
l2 Plaintiff
DEFENDANT CITY OF PHOENIX’S
I3 vs. REPLY IN SUPPORT OF ITS MOTION
TO CONFORM JUDGMENT
14 CITY OF PHOENIX, FRANK
FAVELA, AND FRANK PERALTA,
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Defendants.
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17 Defendant City of Phoenix respectfully submits this reply in support of its Motion to
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Conform the Judgment to statutory caps. Despite the Plaintiff s colloquy that the City’s
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20 motion asks this Court to "radica11y reduce" the Jury’s verdict, all that the City asks this
2] Court to do is follow the law and conform the Judgment to federal statutory caps that have
22 been upheld by the United States Supreme Court, a fact well known by Plaint.iff’s counsel.
23
Lonsdale v. Hf-Health Superman Corp., 3 I 4 F.3d 355, 358-59 (9th Cir. 2002); Pollard v. EJ.
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25 DuPont de Nemours C0., 213 F.3d 933, 946 (6"` Cir. 2000), rev’d on other grounds, 532 U.S.
26 843 (2001). The Plaintiff, in her responsive opposition to allowing this Court to impose the
Z? statutory mandated caps, submits affirmative defense argument that is not the law in the
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l Ninth Circuit, the District of Arizona or, for that matter, anywhere else. There is no case,
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nor any requirement, that obligates the City to affirmatively plead that in the event a jury
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4 (who cannot be told about the caps) awards an amount greater than the statutory cap, the
5 Court must then conform the Judgment (verdict) and apply 42 U.S.C. § 1981 (B)(3), the
6 statutory cap on damages. Each case cited by the Plaintiff to come up with her novel
7 . .
argument and theory relate to a true and recognized affirmative defense, not an instance rn
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9 which the Court must apply a statutory cap and conform the verdict to the law.
Indeed, in a similar instance involvin a statutory cap, in Re the Exxon Valdez Icicle
10 S
E rg ll Seq/beds, 229 F.3d 790(9"` Cir. 2000), the Ninth Circuit affirmed what had been taken for
M % 12 . . . .
E ‘? § granted, that rs, with respect to statutory caps, juries are not to be told of the statutory caps
2 § 13
S E 14 on damages, just as they are not to be told in those situations in when statutes allow damage
@ ri
Q 8 15 awards to be trebled. These are matters for the Court following the jury verdict. Q at 799;
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((5 E 16 see Lansdale v. Hi-Health Superman Corp., 314 F .3d 355, 357 (9"` Cir. 2002) (the jury
°° rr . . . . .
returned a verdict 111 excess of the statutory caps, and thereafter, the District Court applied
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19 the limitation found in 41 U.S.C. § 1981 and reduced the damage award consistent to
20 statutory cap).
2l The City has not waived anything. The City simply requests that this Court conform
22 the jury verdict to comply with the statutory cap.
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Case 2:04-cv-00289-IVIHIVI Document 91 Filed O1/30/2006 Page 2 of 3

1 DATED this 30th day of January, 2006.
2 GAONA LAW FIRM
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4 fsf David P. Gaona
David F. Gaona
5 3101 N. Central Ave., Suite 720
6 Phoenix, Arizona 85012
it James J. Sampanes, Esq., ASB# 018143
Assistant City Attorney
8 200 W. Washington Street
g Suite 1300
Phoenix, AZ 85003-1611
10 Attorneys for Defendants
·:¤ 11
E § CERTIFICATE OF SERVICE
E E N I2
L; E Q 13 I hereby certify that on January 30, 2006, I electronically transmitted the attached
S i 14 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
bs -
<< C -§
g g § J5 Notice of Electronic Filing to the following CM./ECF registrants:
<: :2 °‘
U :5 I6 Stephen G. Montoya, Esq.
M ly Montoya Jimenez, P.A.
The Great American Tower
18 3200 North Central Avenue, Suite 2550
I 9 Phoenix, Arizona 85012
20 1 further certify that on January 30, 2006, the attached document was hand-delivered
2] to:
22 The Honorable Mary H. Murguia
United States District Court for the District of Arizona
23 Sandra Day O’Connor United States Courthouse
24 401 West Washington Street
Phoenix, Arizona 85003
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27 s/David F. Gaona
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