Free Motion in Limine - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants. Defendants, City of Phoenix, Frank Favela and Frank Peralta hereby supplement their argument advanced previously in their Motion in Limine No. 2 concerning the internal investigations the City accomplished with respect to the Plaintiff's complaint. Plaintiff's counsel is accurate that the fact that the City conducted an investigation is information the jury is going to learn based upon the City's affirmative defense in this case. Moreover, whether that investigation was remedial is relevant, and therefore, the result of the investigation is seemingly relevant and No. CV04-0289 PHX MHM DEFENDANTS' SUPPLEMENT TO MOTION IN LIMINE NO. 2 REGARDING THE CITY'S INTERNAL INVESTIGATION

Case 2:04-cv-00289-MHM

Document 51

Filed 12/01/2005

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appropriate for purposes of jury consumption. What is not appropriate, however, is introduction into evidence of the disciplinary notices attached as Exhibits "A" and "B" to the Plaintiff's responsive opposition to the Defendants' Motion in Limine. Those disciplinary notices contain factual conclusions that resulted from the City investigation. It is the jury's decision to reach conclusions concerning the facts in this case from the evidence as it relates to the relevant claims. Factual conclusions reached that support the disciplinary notice utilized by the City as part of its investigation concerning violations of personnel rules, as previously indicated in the motion in limine, are prejudicial and would be a spring board for argument by Plaintiff's counsel that the fact conclusions are in fact true. The factual conclusions in the disciplinary notice were for purposes other than establishing a Title VII or a § 1983 claim. Moreover, these factual conclusions were reached as a result of a personnel action. These factual conclusions are protected not only by Rule 403, Fed. R. Evidence, because to the extent they have relevance, that relevance is substantially outweighed by the prejudicial impact, confusion and inappropriate usage by the jury. Rule 407, Fed. R. Evidence also applies, that is, an employer should be able to conduct an investigation and reach tentative factual conclusions as part of that investigation without the prospect of those conclusions coming back and hurting them in a civil matter, a civil matter premised on different rules and claims and, the purpose

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GAONA LAW FIRM

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for which monetary damages are sought, versus personnel action taken in the work place. Consequently, Defendants' Motion in Limine No. 2 should be granted to the extent that the disciplinary notices, Exhibits "A" and "B" to the Plaintiff's responsive opposition to Defendants' Motion in Limine No. 2, are excludable as well as any other documentation that resulted from the investigation containing factual conclusions. DATED this 1st day of December, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona 3101 N. Central Ave., Suite 720 Phoenix, Arizona 85012 Attorneys for Defendants

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GAONA LAW FIRM

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CERTIFICATE OF SERVICE I hereby certify that on December 1, 2005, 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: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on December 1, 2005, the attached document was handdelivered 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/David F. Gaona

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GAONA LAW FIRM

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