Free Trial Brief - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Melissa R. Berren (020993) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 3 (602) 530-8407 4 Attorneys for Defendants 5 6 7 8 Matthew Shaffer,
! " # $ % &' ) * # &" # # #

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CIV-03-2344-PHX-FJM DEFENDANTS' TRIAL MEMORANDUM REGARDING THE ADMISSIBILITY OF THE PLAINTIFF'S DISMISSAL WITH PREJUDICE OF HIS LAWSUIT AGAINST JESSICA FUNKHOUSER

9 10 vs.

Plaintiff,

11 State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad 12 Jacobs, husband and wife; and Jessica Funkhouser and Lindy Funkhouser, husband 13 and wife; John Does I-X; Jane Does I-X, 14 15 16 17 18 19 20 21 22 Defendants.

(% #

Defendants CCEC and Colleen Connor, by and through undersigned counsel, hereby submit their Trial Memorandum regarding the admissibility of testimony regarding the dismissal with prejudice of Jessica Funkhouser. I. FACTUAL BACKGROUND On March 25, 2003, plaintiff, as required by Arizona statute, sent a notice of claims letter to Defendants and Jessica Funkhouser. See Notice of Claims Letter dated March 25, 2003 ("Notice of Claims Letter"), admitted in evidence as Exhibit 39. The
Case 2:03-cv-02344-FJM Document 102 Filed 09/15/2005 Page 1 of 5

1 subject line of the Notice of Claim Letter identifies Ms. Funkhouser as an adverse party. 2 The Notice of Claim Letter describes in detail actions taken by Ms. Funkhouser, which 3 plaintiff characterizes as improper and in violation of multiple Arizona statutes. 4 Specifically, plaintiff accused Ms. Funkhouser of playing an integral part in violating 5 A.R.S. §§ 13-2311 & 38-503(B). See Notice of Claims Letter at 7-8. Further, plaintiff 6 accused Ms. Funkhouser of Intentionally Interfering with Contractual Relations. See 7 Notice of Claims Letter at 10. 8 On August 27, 2003, plaintiff filed his lawsuit against Defendants as well as

9 Ms. Funkhouser. Plaintiff asserted a claim for intentional interference with contractual 10 relations against Ms. Funkhouser. After conducting discovery, Plaintiff dismissed his 11 claim against Ms. Funkhouser with prejudice. See Order of Dismissal filed January 7, 12 2005. 13 The plaintiff's Notice of Claims Letter has already been admitted in evidence. See

14 Exhibit 39. Ms. Funkhouser and her husband also appear on the caption of the case. 15 Accordingly, to avoid confusion and the likelihood that the jury will attribute improper 16 motives to Ms. Funkhouser, defendants seek to introduce testimony that the claim 17 asserted against Ms. Funkhouser was dismissed with prejudice by plaintiff. 18 II. 19 LEGAL ARGUMENT Setting aside the issue of whether the dismissal of Ms. Funkhouser from the

20 lawsuit is independently relevant to the issues in this case, at the very least, testimony 21 that the claim asserted against Ms. Funkhouser was dismissed with prejudice is 22
Case 2:03-cv-02344-FJM Document 102 2 Filed 09/15/2005 Page 2 of 5

1 admissible because plaintiff has "opened the door" to such testimony by his use of the 2 Notice of Claims Letter. It is well established that previously deemed inadmissible 3 evidence may be introduced to "rebut any false impression" that might have resulted 4 from prior testimony or other evidence. See Nguyen v. Southwest Leasing and Rental, 5 Inc., 282 F.3d 1061, 1067 (9th Cir. 2002) (in strict products liability claim, district court 6 did not abuse its discretion when it allowed testimony and exhibits regarding safety 7 control measures that had been deemed inadmissible pursuant to a Motion in Limine 8 when opposing party "opened the door" by eliciting testimony of possible deficiencies in 9 the manufacturing process); United States v. Segall, 833 F.2d 144, 148 (9th Cir. 1987) 10 (district court did not abuse discretion by admitting evidence, which clarified a false 11 impression left by earlier testimony); United States v. Collicott, 92 F.3d 973, 979-980 12 (9th Cir. 1996) (government allowed to introduce entire conversation, which was 13 inadmissible until defendant "opened the door" by eliciting testimony regarding a portion 14 of the conversation). 15 Plaintiff seeks to characterize Ms. Funkhouser as a state official who acted

16 wrongfully. The Notice of Claims Letter accuses Ms. Funkhouser directly of violating 17 two Arizona statutes and of the tort of intentional interference with contractual relations. 18 Without more information, the jury will be left with the false impression that 19 Ms. Funkhouser's credibility is questionable on the basis that her testimony is motivated 20 by the fear that claims will be brought against her in the future, are pending in another 21 action, or have been adjudicated. The only way to rebut this false impression is to allow 22
Case 2:03-cv-02344-FJM Document 102 3 Filed 09/15/2005 Page 3 of 5

1 testimony and evidence that the plaintiff's claim asserted against Ms. Funkhouser has 2 been dismissed; that the claim asserted against Ms. Funkhouser cannot be asserted in the 3 future; and that Ms. Funkhouser never admitted any wrongdoing. See United States v. 4 Lindemann, 85 F.3d 1232, 1242-1243 (7th Cir. 1996) (offering evidence solely for the 5 purpose of enhancing a witness's credibility is inadmissible, however, "[o]nce a witness's 6 credibility has been attacked...the non-attacking party is permitted to admit evidence to 7 `rehabilitate' the witness"). 8 III. 9 CONCLUSION For the reasons stated above, evidence that Ms. Funkhouser was dismissed with

10 prejudice in the form of testimony from Ms. Funkhouser, must be admitted to rebut the 11 false impression that will be left by the introduction into evidence of the Notice of Claims 12 Letter. 13 14 15 16 17 18 19 /// 20 /// /// 21 22
Case 2:03-cv-02344-FJM Document 102 4 Filed 09/15/2005 Page 4 of 5

RESPECTFULLY SUBMITTED this 15th day of September, 2005. GALLAGHER & KENNEDY, P.A. By: s/Jay A. Zweig_______________ Jay A. Zweig Melissa R. Berren 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants

1 COPY of the foregoing electronically transmitted via the U.S. District Court 2 Electronic Case Filing system this 15th day of September, 2005 to: 3 Richard J. Harris, Esq. 4 Richard J. Harris Law Offices, P.C. 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 5 Co-Counsel for Plaintiff 6 David C. Larkin, Esq. David C. Larkin, P.C. 7 4645 S. Lakeshore Drive, Suite 6 8 Tempe, Arizona 85282-3747 Co-Counsel for Plaintiff 9 s/Dawn Sylvester_________ 568-0140/1297340 10 11 12 13 14 15 16 17 18 19 20 21 22
Case 2:03-cv-02344-FJM Document 102 5 Filed 09/15/2005 Page 5 of 5