Free Motion to Strike - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff, Martha Slaughter-Payne UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MARTHA SLAUGHTER-PAYNE, Plaintiff, vs. ANTHONY PRINCIPI, SEC DEPT. OF VETERANS AFFAIRS AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV 03-2300PHX ROS PLAINTIFF'S MOTION UNDER RULES 16, 37 AND 41 SANCTION OF PRECLUSION OF WITNESSES FOR FAILURE TO COMPLY WITH DISCLOSURE REQUIREMENTS

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Martha Slaughter-Payne, Plaintiff, by and through undersigned counsel, moves the Court to strike Defendant's witnesses, Donald Huckaby; Mike Jones; Mauricio G. Ponce; Mike Dole; Richard Moore and Ralph Martinez. Plaintiffs move to strike Defendant's action pursuant to Federal Rule of Civil Procedure 16(b) and (f) on the grounds that Defendant failed to meet the expert disclosure deadline set forth in the Rule 16(b) scheduling order, failed to seek leave of the court to modify the order, and failed to provide a "good cause" showing for missing the expert disclosure deadline. While Plaintiff's move to dismiss this action for failure to comply with the court's scheduling order and failing to seek leave to modify the order, they also have brought their motion to dismiss under Federal Rule of Civil Procedure 41 (b) for failure of the defendant to

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comply with these rules and order of court. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith.

DATED this 27th day of March, 2005

Patterson & Associates, P.L.L.C.
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s/ Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS: Discovery in this matter began in September 3, 2004. Discovery cut-off was March 27, 2006. Pursuant to the Scheduling Order, the deadline for Defendant to disclose expert witnesses was March 5, 2005. Defendant has never disclosed an expert witness in this matter. More than one year after the close of discovery, Plaintiff received Defendant's Supplemental Disclosure Statement, which disclosed an additional four potential witnesses. The disclosure stated in pertinent part: Supplemental: Donald Huckaby, Chief, IRM, VA Eastern Colorado Health Care Systems (ECHCS) 1055 Clermont St. (IRMS) Denver, CO 80220, Mr. Huckaby is expected to testify to VA Information Resources Management Services policies, practices and procedures in general and with specific reference to issues in this lawsuit. Mike Jones, Former Chief of Information Resources Management Services Carl T. Hayden VAMC, retired Colorado Springs, Colorado. Mr. Jones is expected to testify to VA Information Resources Management Services policies, practices and procedures in general and with specific reference to issues in this lawsuit. Mauricio G. Ponce, HRM Service Chief WJB Dorn VAMC. 6439 Garners Ferry Road Columbia, SC 29209, Mr. Ponce is expected to testify to VA Human Resources policies, procedures and practices. Mike Dole, Director, Workforce Analysis Evaluation Diversity Management & EEO (06), Department of Veterans Affairs 710 Vermont Ave. NW Washington DC, 20420, Mr. Dole will testify to statistical analysis of minority employment and all related aspects of employment at the Carl T. Hayden VAMC. Policies, procedures, policies, practices and

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procedures in general and with specific reference to issues in this law Suit. Because each of Defendant's witnesses is part of Defendant's management, their identities have always been easily ascertainable to the Defendant. On September 7, 2005 Plaintiff sent a letter (Attached as Exhibit 1) to Defendants requesting a date and a time for the depositions for Rafael Martinez and Richard E. Moore. On September 20, 2005 Defendant responded (Attached as Exhibit 2) stating that Rafael Martinez's physician, Dr. Laufer, by way of letter dated September 19, 2005 (Attached as Exhibit 3) recommended that Mr. Martinez not proceed with a deposition due to his medical condition. The Defendants went on to state that Roger Moore was no longer a VA employee and that the VA was attempting to locate him. On October 11, 2005, Plaintiff wrote two letters (Attached as Exhibit 4 and 5) requesting more information regarding Mr. Martinez condition and noticing a deposition for Mr. Moore. On October 18, 2005 Defendant responded with a letter (Attached as Exhibit 6) to Plaintiff regarding Richard Moore stating the Plaintiff can go to Washington, DC area for a deposition however the defendant is without authority to compel him to travel. On October 27, 2005 Defendant responded with a letter (Attached as Exhibit 7) to Plaintiff regarding Rafael Martinez, again stating that due to doctor's recommendation (Attached as Exhibit 8) Mr. Martinez cannot appear for deposition. On or about late January to early March of 2006, Plaintiff discovered that on October 29, 2005, Mr. Martinez children threw him a retirement party (Attached as Exhibit 9). II. ARGUMENT: The Federal Rules of Civil Procedure, Rule 26 requires a party not only to disclose witnesses but also to supplement or correct those disclosures. The relevant portion of Rule 26 reads:

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[a] party is under a duty to supplement at appropriate intervals its disclosures . . . if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Fed. R. Civ. P. 26(e)(1). The purpose of rule 26 is "to prevent ambush, resulting in surprise or prejudice of undisclosed or late disclosed evidence." Equant Integrations Serv., Inc. v. United Rentals (North America), Inc. 2003 WL 21991383, p. 4 (D.Conn) (emphasis added). Because of the purpose of Rule 26, "courts have repeatedly held that the automatic sanction for a violation of Rule 26 is preclusion". Id., p.3. While the rules neither define "appropriate intervals" nor provide any concrete suggestions for the timing of supplemental disclosures, clearly disclosing significant witnesses such as Donald Huckaby, Mike Jones, Mauricio G. Ponce and Mike Dole, whom were known to Defendant since the beginning of this litigation, more than one year after discovery cut off, is not just "untimely" but is the functional equivalent of a failure to disclose witnesses. Such conduct suggests "ambush tactics" and flies in the face of fair and complete disclosures, which the rules are designed to ensure. "The purpose of these rules is to . . . curb dilatory litigation tactics." Continental Laboratory Products, Inc., v Medox International, Inc., 195 F.R.D. 675 (S.D.Ca.2000). Moreover, courts must construe and administer the Federal Rules of Civil Procedure to "secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P.1. It is this very standard, a "just, speedy, and inexpensive determination of every action," that the Supreme Court has heralded as "the touchstone of federal procedure." Brown Shoe Co. v. United States, 370 U.S. 294,305, 82 S.Ct. 1502, 1513, 8 L.Ed. 2d 510 (1962).1

This kind of litigation tactic, the last minute disclosure of witnesses, runs afoul of the Scheduling Order which directs that "each party will conduct discovery in such a manner as to complete, within the deadline, any and all discovery indicated by the initial rounds of discovery." Rule 16(f) permits trial courts to sanction parties for the failure to obey a scheduling order.

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Rule 37 provides: [a] party without substantial justification fails to disclose information required by Rule 26(a) or 26(3)(1), or to amend a prior response to discovery as required by Rule 26(e)(2) is not, unless such failure is harmless permitted to use any evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.Fed.R.Civ.P. Rule 37(c)(1). The rule also provides for other sanctions in lieu of or in addition to the preclusion sanction. Id. As Rule 37 makes clear, a party can be sanctioned not only for non-disclosure but also for failing to meet its obligations to supplement its disclosures. In Burney v. Rheem Mfg. Co., Inc. the trial court excluded evidence submitted in support of a response to a summary judgment motion because the plaintiff failed to comply with the disclosure requirements and the Rule 16 scheduling order. Burney v. Rheem Mfg. Co., Inc. 196 F.R.D. 659 (M.D.Ala 2000). Although the sanctions in Burney were made pursuant to Rule 16(f), the court determined that it was appropriate to apply the Rule 37(c) standards. Id., at 690.2 In Burney, the plaintiff testified during her deposition "concerning a number of specific incidents which formed the basis of her sexual harassment claim, including incidents involving people who were not identified to defendant" in accordance with the Rule 16 scheduling order. Id., 685. The court concluded that Plaintiff's failure to comply with the Rule 16 disclosure and supplementation requirement deprived the defendant "of any meaningful opportunity to investigate Plaintiff's allegations prior to her deposition." Id., at 692. The sanction for a violation of 26(e)(1), the rule that governs a party's obligation to supplement disclosures, is unambiguous and mandatory: the party may not be

The Middle District of Alabama did not implement Rule 26(a)(1) of the Federal Rules of Civil Procedure. Instead, it required initial disclosures through uniform Rule 16 scheduling orders. The governing scheduling order in Burney required the parties to make their initial disclosures "based on the information then reasonably available to [them]" and that the disclosures "are subject to a duty of supplementation within 14 days of when a party learns that in some material respect the information disclosed is incomplete or incorrect. . . ." 196 F.R.D. at 68485.

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permitted to use as evidence at a trial, at a hearing, or on a motion any witness at trial witnesses not properly disclosed. Fed. R. Civ. P. 37(c)(1); Yeti by Molly LTD v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 1991)(untimely disclosure of expert report justified exclusion of testimony by expert at trial). The advisory notes describe Rule 37(c) (1) as being "self-executing", "automatic" sanction to "provide [] a strong inducement for disclosure of material. . . ." Rule 37(c), Federal Rules of Civil Procedure, Advisory Committee Notes B 1993 Amendments. The 1993 amendment has been described as establishing a "new rule [that] clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches of the rule, and the required sanction in the ordinary case is mandatory preclusion'." Burney v. Rheum Mfg, Co., Inc., 196 F.R.D. 659, 691 (M.D.Ala. 2000) (internal citations omitted). In order to avoid undue hardship, however, this mandatory, automatic, sanction is limited to violations "without substantial justification," coupled with the exception for violations that are "harmless." Fed.R.Civ.P.37(c)(1). Courts, however, "must deal decisively with a party's failure to adhere to the disclosure rules." Lohnes v. Level 3 Commun. Inc., 272 F.3d 49 (1st Cir. 2001)(emphasis added)(failure to comply with expert disclosure rules justified disregarding expert's affidavit). The party facing sanctions bears the burden to prove that its failure to supplement its disclosures appropriately is both substantially justified and harmlessness. Yeti by Molly LTD v. Deckers Outdoor Corp., 259 F.3d at 1107. Defendant cannot meet its burden for either prong. 1. Defendant Cannot Substantially Justify Identifying These Witnesses Before The Close of Discovery. It has been said that, for a party to establish it was substantially justified in its

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violation of disclosure rules, the justification must be "to a degree that could satisfy a

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reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Burney v. Rheem MFG. Co., Inc., 196 F.R.D. at 691, quoting Nguyen v. IBP, Inc., 162 F.R.D. 675, 681 (D.Kan. 1995) "The proponent's position must have a reasonable basis in law and fact." Id. Here, the only rationale for such a late disclosure, which the facts and law (rules) would support is that Defendant received information, previously unavailable to it, shortly before supplementing its disclosures. Defendant cannot be heard to say it did not know their whereabouts or what information they might have regarding Defendant's defenses or claims. A modicum of effort by the Defendant should have resulted both in its timely "discovery" and disclosure of these witnesses. The positions Donald Huckaby; Mike Jones; Mauricio G. Ponce; Mike Dole occupy at the VA belies any effort to justify the lateness of their disclosure. 2. The Disclosure of Donald Huckaby; Mike Jones; Mauricio G. Ponce and Mike Dole is a Desperate Attempt to Circumvent the Rules Regarding Expert Witnesses. It is clear that disclosure of Donald Huckaby; Mike Jones; Mauricio G. Ponce and Mike Dole, almost one year after close of discovery of expert witnesses is nothing more than Defendant's effort to bootstrap expert testimony into theses proceeding disguised as a lay witness. Defendants have failed to meet the expert disclosure deadline set forth in the Rule 16(b) scheduling order, failed to seek leave of the court to modify the order, and

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failed to provide a "good cause" showing for missing the expert disclosure deadline. Pursuant to Rule 16(b), a scheduling order entered by the court "shall not be modified except upon a showing of good cause and by leave of the district judge." Rule 16(f) provides that if a party fails to obey a scheduling order, the court upon motion "may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)," which include prohibiting a party from introducing designated matters in evidence, striking pleadings, and dismissing the action.

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Dru v. McBride, 2005 U.S. Dist. LEXIS 24783, 8-9 (D. Ariz. 2005) The scheduling order set a deadline of March 5, 2005 for disclosure of expert witnesses. Plaintiff failed to meet that deadline and, in fact, did not disclose these experts until March 13, 2006. Defendant was not diligent in attempting to comply with the court's scheduling order or in seeking a modification of the order. Defendant disclosed these experts more than a year after the deadline. The purpose of these rules is to encourage timely disclosure of expert witnesses and to curb dilatory litigation tactics. See generally 7 James Wm. Moore et al., Moore's Federal Practice § 37.60[1] (3d ed. 1999). Defendant disclosed these experts without an experts report. The reason for requiring expert reports is 'the elimination of unfair surprise to the opposing party and the conservation of resources." Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J. 1996) (citations omitted). Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 299 (D. Nev. 1998). It is clear that Plaintiff has been unfairly surprise and will have to expend enormous resources to prepare for these witnesses especially since the disclosure occurred during the last two week of discovery. Furthermore, Rule 26(a)(2)(B) appears "to require exact compliance in all particulars with the disclosures" requirement. Sullivan v. Glock, Inc., 175 F.R.D. 497, 503 (D. Md. 1997) (citation omitted) (declaring "a literal reading of Rules 37(a)(3) and 37(c)(1) would result in the application of the automatic exclusion of an expert's trial testimony if there was not complete compliance with the requirements of Rule 26(a)(2)(B), unless the court finds that there was substantial justification for the failure to make complete disclosure or that failure to disclose is harmless"). Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 299 (D. Nev. 1998). In the Ninth Circuit, the district court is given broad discretion in supervising the pretrial phase of litigation and its decisions regarding the preclusive effect of a pretrial order ... will not be disturbed unless they evidence a clear abuse of discretion. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369

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(9th Cir. 1985). For example, the Ninth Circuit has affirmed the exclusion of untimely expert testimony where the plaintiff unjustifiably missed the deadline for disclosing expert witnesses by 20 days and missed the deadline for submitting expert reports by six weeks. Quevedo v. Trans-Pacific Shipping, Inc., 143 F.3d 1255, 1258 (9th Cir. 1998) (White, J.) (upholding exclusion of untimely expert testimony submitted by plaintiff in opposition to summary judgment). Here, Defendant's disclosure of Donald Huckaby; Mike Jones; Mauricio G. Ponce and Mike Dole is untimely not by twenty (20) days or six weeks; but by more than one year. 3. Donald Huckaby; Mike Jones; Mauricio G. Ponce and Mike Dole can only testify as experts. Donald Huckaby, Mike Jones, Mauricio G. Ponce nor Mike Dole have never met the Plaintiff. They have never supervised the Plaintiff nor have they been involved or witnessed any of the alleged discriminatory conduct. The Ninth Circuit requires a lay witness to have sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful. See, e.g., Langford, 802 F.2d at 1179 (two witnesses, one "had met with [the defendant] approximately 50 times and [the other] had known [the defendant] most of his life"); Butcher, 557 F.2d at 667 n.3 (several witnesses who had observed the defendant on multiple occasions or had total exposure to him for at least two hours); United States v. Miranda, 986 F.2d 1283, 1285 (9th Cir.) (two longtime acquaintances of defendant), cert. denied, ___ U.S. ___, 113 S. Ct. 2393 (1993); United States v. Young Buffalo, 591 F.2d 506, 513 (9th Cir.) (Defendant's estranged wife and his probation officer), cert. denied, 441 U.S. 950, 60 L. Ed. 2d 1055, 99 S. Ct. 2178 (1979); United States v. Saniti, 604 F.2d 603, 605 (9th Cir.) (Defendant's two roommates), cert. denied, 444 U.S. 969, 62 L. Ed. 2d 384, 100 S. Ct. 461 (1979). See also United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1983) (lay opinion identification inadmissible

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where witness "not only did not know [the defendant, but] he had never even seen him in person" and identification based solely on the witness' review of photographs of defendant). United States v. Henderson, 68 F.3d 323, 326 (9th Cir. 1995). The testimony of Donald Huckaby, Mike Jones, Mauricio G. Ponce or Mike Dole should also be excluded because their testimony will contain double and perhaps triplehearsay because the opinions will be based on statements of others. Defendant's may allege that Donald Huckaby, Mike Jones, Mauricio G. Ponce or Mike Dole is admissible as lay witnesses because they are agents or employees of a party (The VA) concerning a matter within the scope of the agency or employment and were made during the existence of the agency or employment relationship. See FRE 801(d)(2)(D). However, under FRE 801(d)(2)(D) their testimony will not be admissible because they do not have personal knowledge of the facts that they will relate and use as a basis for their opinions. Federal Rule of Civil Procedure ("FRCP") 26(a)(2) provides that a party must disclose to other parties "the identity of all expert witnesses who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." FRCP 26(a)(2)(B) further adds that: Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

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4. The Disclosure Of Witnesses After Discovery Cut Off Is Not A "Harmless" Failure. A party who is denied the identity and subject matter of witnesses that will testify at trial until after the close of discovery has been denied "a meaningful opportunity" to investigate what information these witnesses have as well as denied the use of their information with regard to other depositions and/or discovery. Such denial is not "harmless." See Burney v. Rheum, 196 R.F.D. at 692. Taking the deposition of a witness identified by a party does not help to minimize the costs of discovery or nor does it result in a "just, speedy, and inexpensive determination" in the action. Id. The untimely

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disclosure of witnesses anticipated to be called at trial precludes determinations regarding not only additional discovery but also precludes determinations regarding trial strategy from being made prior to the close of discovery.

5. Richard Moore and Rafael Martinez must be prohibited form testifying.

A party is obliged under Rule 30 to respond to a notice to have his deposition taken; and is subject to sanctions under Rule 37(d) for failing to appear. Rule 30(b)(1) states that a party desiring to take a deposition shall give reasonable notice to the other parties. EEOC v. Northwest Orient Airlines, 1987 U.S. Dist. LEXIS 14961 (D. Wash. 1987).

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Pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure, a party may seek sanctions against a party for failing to attend his or her deposition. Rule 37(d) provides in pertinent part: If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the

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reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Rule 37(b)(2) provides in pertinent part: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated

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claims or defenses, or prohibiting that party from introducing designated matters in
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evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . . The purpose of Rule 37 sanctions is to both "'penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.'" Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980) (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 49 L. Ed. 2d 747, 96 S. Ct. 2778 (1976)); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1368 (9th Cir. 1980). Here, Richard Moore fails to appear for his deposition because defendants allege

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that he was unavailable, however, on every one of Defendants disclosures they have omitted Mr. Moore address, place of employment or phone number. Defendants have clearly shown that Mr. Moore is under their care and control and they had a duty to produce him. As to Mr. Martinez, clearly he is avoiding being deposed in hope of surprising plaintiff with his testimony. Defendants, behavior must be sanction to deter these kinds of practices Mr. Moore and Mr. Martinez must be prohibited from testifying.

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6. Plaintiff Has Been Severely Prejudice by Defendants Dilatory practices.

Plaintiff will be prejudiced by allowing the witnesses to testify. In determining whether to dismiss a claim for failure to comply with a court order, the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to [Plaintiffs]; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of

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cases on their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). In light of the fact that this matter commenced over three years ago, the first two dismissal factors and the public interest in expeditious resolution of litigation and the trial court's interest in docket control favor striking the testimony of Donald Huckaby, Mike Jones, Mauricio G. Ponce, Mike Dole, Richard Moore and Rafael Martinez. Malone v. U.S. Postal Service, 833 F.2d 128, 131 (9th Cir. 1987); Pagtalunan, 291 F.3d at 642. The prejudice to the Plaintiff is sufficient to support an order of striking the above witnesses testimony. First, the Defendant has not presented any excuse for the delay in producing Mr. Moore and Mr. Martinez or an excuse for failing to disclose Donald Huckaby, Mike Jones, Mauricio G. Ponce and Mike Dole as expert or lay witnesses.

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What the Defendant has done is attempt to circumvent the rules of this court. Moreover, the Defendant failed to offer any reason or explanation for his failure to file a motion to modify the scheduling order either before or after the Rule 16 scheduling conference. Finally, Donald Huckaby, Mike Jones, Mauricio G. Ponce or Mike Dole as experts are subject to the reporting requirements of Rule 26(a)(2)(B). The third factor weighs in favor of dismissal. The fourth factor requires the court to consider the availability of less drastic sanction. In the Rule 16 scheduling conference, the court made it clear that dismissal was a possible consequence of failing to comply with the scheduling order without seeking

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leave to modify the scheduling order. Instead of following the order and motion the court for an order to modify the scheduling order, Defendants are attempting an end run around the rules. Accordingly, exclusion of Donald Huckaby, Mike Jones, Mauricio G. Ponce,

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Mike Dole, Richard Moore and Rafael Martinez would amount to a less drastic sanction than dismissal of the case. For the reasons stated above, the fourth factor weighs in favor of striking the testimony of Donald Huckaby, Mike Jones, Mauricio G. Ponce, Mike Dole, Richard Moore and Rafael Martinez. Finally, Plaintiff will suffer prejudice because the discovery is over and there is no time for a deposition and other discovery. The defendants' application was filed only fourteen days prior to the close of discovery, if the court does not sanction the Defendants

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the Plaintiff will not have sufficient time to conduct further discovery to prepare for defendants' newly proposed expert witness or Mr. Moore and Mr. Martinez.

III.

CONCLUSION

Defendant cannot substantially justify its late disclosure of these witnesses. Plaintiff respectfully requests the Court issue an Order that Defendant may not be permitted to use as evidence at a trial, at a hearing, or on a motion any witness not previously disclosed by Defendant in its Disclosure Statements prior to discovery cut off and those not disclosed by the Plaintiff. Plaintiff also seeks her attorney's fees and cost and any other action the court deems just and proper. For the foregoing reasons it is respectfully requested that Defendant's witnesses Donald Huckaby, Mike Jones, Mauricio G. Ponce, Mike Dole, Richard Moore and Rafael Martinez be stricken and that sanctions be awarded.

Respectfully submitted, this 27th day of March, 2006 Patterson & Associates, P.L.L.C. s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 27th day of March, 2006, I electronically transmitted that attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] [email protected] A copy of this document was provided by Mail to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003 By s/Stephanie Coulter

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