Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Monica Ortega-Guerin, plaintiff, vs. No. CV 04-0289-PHX-MHM

Plaintiff's Response in Opposition to Defendant City of Phoenix's Motion to City of Phoenix, Frank Favela, and Frank Conform the Judgment Peralta, (Oral Argument Requested) defendants. The City of Phoenix asks this Court to radically reduce the jury's verdict against the City in this civil rights action based on the alleged applicability of the limitation on damages contained in 42 U.S.C. § 1981(B)(3). However, as demonstrated in detail below, the City has waived this issue by failing to assert it in its Answer to Ms. Ortega's Complaint or preserve it as an issue in the Final Pretrial Order governing the issues in this dispute. Specifically, in the City's Answer to Ms. Ortega's Complaint, the City affirmatively alleged the following: For its affirmative defenses, the City of Phoenix alleges that the Plaintiff's Complaint fails to state a claim upon which relief can be granted; Plaintiff does not possess any Title VII claim against the individual Defendants; the individual Defendants are protected by qualified immunity; the City exercised reasonable care to prevent and correct promptly harassing behavior and the Plaintiff unreasonably failed to take advantage of corrective and preventive opportunities provided by the City of Phoenix; Defendant reserves all other affirmative defenses pursuant to Rule 8, Federal Rules of Civil Procedure as if fully set forth herein.

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No where in its Answer does the City allege or suggest that there is any statutory of common law limits on its liability. The limitations on damages of 42 U.S.C. § 1981(B)(3) are a type of limited immunity that­like the defense of qualified immunity­must be affirmatively pled. See, e.g., Kelson v. City of Springfield, 767 F.2d 651, 657 (9th Cir. 1985) ("qualified immunity is an affirmative defense which must be pleaded"), and Gomez v. Toledo, 446 U.S. 635, 640 (1980)(same). See also 999 v. C.I.T. Corp.,776 F.2d 866, 871 n.2 (9th Cir.1985) ("CIT failed to raise mitigation of damages as an affirmative defense in its pleadings, which ordinarily would constitute a waiver of that defense. . . . However, the issue of mitigation was included in the pre-trial order, which has the effect of amending the pleadings"). Accordingly, because the City did not plead the defense of 42 U.S.C. § 1981(B)(3) in its Answer, it has waived the issue post-judgment. The City also omitted the issue of the damage limitations of 42 U.S.C. § 1981(B)(3) in the Final Pretrial Order. This omission precludes the City from raising the issue post-judgment. For example, in In re Hunt, 238 F.3d 1098, 1101 (9th Cir. 2001), the Ninth Circuit concluded that: Hunt requested attorney's fees in his pretrial conference statement, and that request was incorporated by reference in the bankruptcy court's pretrial order. A pretrial order has the effect of amending the pleadings. Because Hunt's request for attorney's fees was incorporated by reference in the pretrial order, which had the effect of amending the pleadings, Hunt did not waive his right to fees by omitting the request from his answer, even assuming that a pleaded request for fees were required. The waiver argument therefore fails. Similarly, in Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 924 (9th Cir. 1988), the Ninth Circuit stated that: Appellants attempt to avoid liability by claiming the contracts were novated. A party must plead as an affirmative defense any . . . matter constituting an avoidance . . . ." Fed.R.Civ.P. 8(c). A pretrial order has the effect of amending the pleadings, controls the subsequent course of action in the litigation. Novation was not raised in the pretrial order or prior to trial. Thus, the defense was waived. See also, Pierce County Hotel Employees and Restaurant Employees Health Trust v. Elks Lodge, 827 F.2d 1324, 1328-1329 (9th Cir. 1987) ("Issues not preserved in the pretrial order -2-

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are eliminated from the action"), Operating Eng'rs Pension Trust v. Cecil Backhoe Serv., 795 F.2d 1501, 1507 (9th Cir.1986) (failure to raise argument in pretrial conference order or at trial constituted waiver), Southern Cal. Retail Clerks Union & Food Employers Joint Pension Trust Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir.1984) (failure to include issue in pretrial order constituted waiver, even though the issue was raised earlier in the proceeding), and Seymour v. Coughlin Co., 609 F.2d 346, 348-49 (9th Cir.1979) (failure to include issue in pretrial order or to raise issue until after trial court entered proposed findings of facts and conclusions of law precluded appellate review), cert. denied,446 U.S. 957 (1980). Accordingly, under the circumstances, the City has waived the applicability of 42 U.S.C. § 1981(B)(3) by failing to raise it as an issue in its Answer or in the Final Pretrial Order. Dated this 20th day of January 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on January 20, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David F. Gaona Gaona Law Firm 3101 North Central Avenue, Suite 720 Phoenix, Arizona 85012 Attorney for Defendants I further certify that on January 23, 2005, the attached document was hand-delivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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