Free Response to Motion - District Court of Arizona - Arizona

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COLLINS & COLLINS L.L.P. By: JOSEPH E. COLLINS Attorneys for Plaintiff Arizona Bar Number 018289 10801 North 32nd Street, Suite 3 Phoenix, Arizona, 85028 (602) 788-7227 ================================================================= IN THE UNITED STATES DISTRICT COURT

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The motion of Defendants is based on Defendants unsupport belief that "Plaintiff 23 will try to interject issues into the trial that have already been decided and dismissed by the 24 court and the state court". Such a motion is not only insulting, but unfounded. Perhaps 25 26 27 28 Defendants would attempt such a tactic, but Plaintiff will not. Defendants, in effect, are saying that they don't believe counsel for Plaintiff will follow the rules. 1 FOR THE DISTRICT OF ARIZONA ================================================================= KENNETH & TOWANDA LYON, ) for TARALYN D. LYON ) Case Number CV03-2306PHX-JAT ) Plaintiff, ) ) RESPONSE TO MOTION IN LIMINE vs. ) RE: FACTS AND ISSUES DECIDED ) IN SUMMARY JUDGMENT ) ESTRALLA FOOTHILLS ) HIGH SCHOOL, et al. ) ) Defendants. ) ================================================================= COMES NOW Plaintiffs by and through their attorneys, COLLINS & COLLINS, L.L.P. by JOSEPH E. COLLINS, and responds to Defendants' motion in limine based on their "belief" of potential attempts to cause a mistrial as follows: POINT ONE

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Defendants attempt to base this belief of that fact that Plaintiffs have conducted discovery and have "since the Court's Order on Summary Judgment.....taken a number of deposition during which he questioned deponents on a number of issues that have already been dismissed". Surely, counsel for Defendants knows, as Plaintiffs are sure the Court knows, that discovery is not limited to factual issues already disclosed, but can deal with any fact that is likely to lead to admissible evidence under Rule 26(b) of the Federal Rules of Civil Procedures: Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii). (Emphasis added.) POINT TWO For some strange reason, Defendants do not allow for the possibility that Defendants are wrong in some of their assertions and that Plaintiff may be right; i.e. "Plaintiff's counsel has also refused to acknowledge that the fact the Plaintiff consumed alcohol is an undisputed fact despite the fact that the issue has been ruled upon by the Superior Court and the Court of Appeals and disposed on by this court at summary judgment". There is no need in this case nor any other for Plaintiff's counsel to acknowledge that Plaintiff consumed alcohol when she steadfastly denies that she knowingly did so. Under the Rules of Ethics, counsel for Plaintiff has a duty to put forth her claims. If Defendants can prove that the Plaintiff's testimony that she did not knowingly consume alcohol has never before been disputed, then it is a matter of credibility and cross examination, but it has not place in a motion to limit testimony because of the purposes of such a motion; i.e. "the primary purpose of a motion

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in limine is to avoid disclosing to a jury a prejudicial matter which may compel a mistrial." State v. Superior Court, 108 Ariz. 396, 397, 499 P.2d 152, 153 (1972) Nothing about counsel's refusal to admit his client was consuming alcohol knowingly meets this purpose. Indeed, there is no "substantial prejudice" to Defendants should Plaintiff so testify because it would permit Defendant to produce the evidence they allege exist. See Ballou v. Henri Studios, 656 F.2d 1147 (5th Cir. 1981) [To excluded relevant evidence, there must be substantial prejudice to the opposing party.] POINT THREE Plaintiff has no intention to "relitigate" claims already decided, but surely counsel for Defendants has practiced law longer enough to know that facts that support one (1) theory of a case can also support another; i.e. facts that support a violation of due process can also support a claim of violation of equal protection. Equal protection claims allow evidence of motive which is important to claims for violation of both rights. Whether or not Defendants had certain policies goes squarely to the issue of whether equal protection was afforded to Plaintiff as does it to the issues of whether Plaintiff was afforded due process of law. As a result, Plaintiff may show at trial that the Defendants' policies varied as it relates to plaintiff. Whether discipline was actually fair in light of the known facts may also be directly contrary to Defendants' written policy when compare to Defendants unwritten policy. Defendants allege that Plaintiff cannot reactivate issues that have already been ruled upon by the court. Plaintiff's testimony that she did not knowingly commune alcohol is at the heart of the equal protection claim and such testimony does not reactivate the due process claim. For example, would Defendants' non-tolerance policy pass constitutional muster if someone placed cocaine in the lunch milk of another student who did not known he or she was consuming cocaine. Under such a factual setting, would equal protection demand the

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expelling of the student who did not know that someone had administered the cocaine. It is this argument that Defendants hope to avoid by their motion. In deposition, Plaintiff inquired into actual policy verse written policy. Such inquires produce evidence in support of the equal protection claims and, may, also produce evidence of due process violations. Defendant's proposed jury instruction number one states, in part, that "Plaintiff must prove: . . . . 2. The difference in treatment was intentional." What goes to intent more than defendants written statment of policy and their failure to comply with it because of some unwritten policy. WHEREFORE, Defendants' motion should be denied or, at a minimum, the court should reserve ruling until the evidence is fully developed. Dated and signed this 29th day of March, 2006.

COLLINS & COLLINS L.L.P /s// 018289 jec ___________________________ JOSEPH E. COLLINS Attorney for Plaintiff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 _________________________________ JOSEPH E. COLLINS CERTIFICATE OF DELIVERY THIS IS TO CERTIFY that a true and correct copy of the foregoing was mailed, postage prepaid, to the following individuals on the 31th day of March, 2006 Ms. Georgia A Staton Attorney at Law Jones Skelton & Hochuli 2901 N Central Suite 800 Phoenix, AZ 85012-2703 /s// 018289 jec

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