Free Motion to Strike - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, v. Plaintiff, CIV-03-2300-PHX-ROS DEFENDANT'S REPLY TO RESPONSE TO MOTION TO STRIKE

Anthony Principi, Secretary, Department of Veterans Affairs, Defendant.

The defendant, R. James Nicholson, 1/ Secretary, Department of Veterans Affairs, by and through undersigned counsel respectfully submits his Reply to plaintiff's Response (Docket Entry # 76) to the defendant's Motion to Strike (Docket Entry # 72), pursuant to Rule 12(f), F.R.Civ.P. paragraphs 28 and 46 of both the Amended Complaint and Proposed Amended Complaint and paragraphs 59 through 124 of the Proposed Amended Complaint. 2/ The defendant's Reply is supported by the attached Memorandum of Points and Authorities and other matters of record.

On January 1, 2005 R. James Nicholson replaced Anthony Principi as the Secretary of the Department of Veterans Affairs. See, Rule 25(d)(1), F.R.Civ.P. The failure to object or failure to move to strike defective pleadings, allegations, and/or affidavits during pretrial proceedings waives such defects; permits the trial court to consider such matters and precludes review of such matters on appeal. Klingman Indemnity Co., 317 F.2d 850, 854 (7th Cir. 1963); Associated Press v. Cook, 513 F.2d 1300, 1303 (10th Cir. 1975); Williams v. Evangelical Retirement Homes, 594 F. 2d 70l, 703-04 (8th Cir.1979); Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979); Davis v. Sears, Roebuck and Co., 708 F.2d 862, 864 (lst Cir. 1983); In Re Teltronics Services Inc., 762 F.2d 185, 192 (2nd Cir. 1985).
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Respectfully submitted this 9th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION In her Response to defendant's Motion to Strike, the plaintiff sets forth two arguments: (1) the "continuing violation doctrine" confers subject matter jurisdiction and permits her to litigate her twenty-two (22) and/or her thirty (30) non-selections at the time of trial, and (2) Arizona has recognized a cause of action for "Bad Faith." As neither of these positions have a good faith basis in law or fact, the defendant's Motion to Strike must be granted as a matter of law. I. Paragraphs 28 and 46 of both the Amended Complaint and the proposed Amended Complaint must be stricken. Despite the fact that the United States Supreme Court decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), severely restricted the "continuing violation" theory, plaintiff has elected to cite cases expressly or implicitly overruled as the legal basis for her opposition to the Motion to Strike: Response, page 3, line 4, Morgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008 (9th Cir. 2000) - Reversed in part by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Response, page 5, line 4, Elliott v. Sperry Rand Corp., 79 F.R.D. 580 (D. Minn. 1978)("Courts have developed the concept of "continuing violations" to resolve timeliness questions.") Response, pages 3 line 24; 5 lines 3 and 9, Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir. 1980). ("The Court did not, as appellee contends, reject the doctrine of continuing violations. It merely defined the nature of continuing violations..."). Response, pages 2, line 24; 5, line 1, Williams v. Owens Illinois, Inc., 665 F.2d 918 (9th Cir. 1982)("For present purposes, however, the relevant strain of continuing violation doctrine is that a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.").
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Response, page 5, line 17, Scott v. Pacific Maritime Association, 695 F.2d 1199 (9th Cir. 1983)("...we cannot agree that the continuing violation doctrine was an issue properly raised or considered by the trial court."). Response, page 3 , line 11, Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179( 1st Cir. 1989)("Although the limitations clock generally starts with the commission of a discriminatory act, a true "continuing violation" rewinds the clock for each discriminatory episode along the way."). Response, page 3, line 9, Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990)("Under the continuing violation doctrine, "a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period."). Response, page 3, line 1, Gutowsky v. County of Placer, 108 F.3d 256 (9th Cir. 1997)("To invoke the continuing violations doctrine in her case, Gutowsky must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during [that] period."). Response, page 4 line 7, Provencher v. CVS Pharmacy, Div. Of Melville Corp., 145 F.3d 5 (1st Cir. 1998)(" A continuing violation allows a plaintiff not only to allege otherwise time-barred acts, but more concretely, to receive damages, such as back pay, based on and reaching back to those acts.'). The utility of the "continuing violation" doctrine, as applied by the Ninth Circuit in federal employment discrimination cases, was severely eroded by the Supreme Court decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), a case originating in the Ninth Circuit. In Morgan, the Supreme Court invalidated the "related acts" method of establishing a continuing violation. The Court explained: [D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the [240] day time period after the discrete discriminatory act occurred. Morgan, 536 U.S. at 113. Under Ninth Circuit precedent before Morgan, a plaintiff could invoke the continuing violation doctrine by showing " ... a series of related acts against one individual." Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir.2003)(quoting Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir.1997). As the Carpinteria court recognized, the Supreme Court invalidated the [Ninth Circuit's] "related acts" method of establishing a continuing violation, stating that
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"discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Carpinteria, 344 F.3d at 828 (quoting Morgan, 536 U.S. at 113).
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Therefore, plaintiff's opposition is without merit and is based on legal principles that are no longer recognized. Finally, plaintiff seeks to avoid the Motion to Strike by relying upon her allegations contained in paragraphs 47, 48 and 49 of the Amended and Proposed Amended Complaint. Response, page 4, lines 18-23. Such matters are beyond the scope of the defendant's Motion to Strike paragraphs 28 and 46. Therefore, such arguments are improper and irrelevant to the issues raised by the defendant's Motion and must be disregarded by the Court. II. Request to Amend as to paragraphs 59 - 124 must be denied as futile Despite the liberal policy of Rule 15(a), F.R.Civ.P., favoring amendments, if amending the complaint would be futile, a Motion to Amend should be denied. See Barber v. Hawaii, 42 F.3d 1185, 1197-98 (9thCir.,1994). In this instance the proposed amendment to add a claim for "spoliation" and/or "Bad Faith" destruction of evidence lacks merit for several reasons. Deleo v. Rudin, 328 F.Supp. 2d 1106,1114 (D.Nev., 2004). The plaintiff has failed to establish a valid basis for amending her Complaint to add a cause of action for "Bad Faith." In her Motion for Sanctions, Docket Entry # 67, she took the position that "bad faith" was merely an element to be considered by the court in imposing sanctions citing Halaco Eng'g Co. v. Costle, 843 F.2d 376, 379-80 (9th Cir. 1988 ); Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) and Unigard Sec. Ins. The Supreme Court further explained that while time-barred acts may not be considered for purposes of liability, evidence of the time-barred acts may be considered as proof of timely claims: "[T]he statute [does not] bar an employee from using the prior acts as background evidence in support of a timely claim." Id. at 113-14. But see, defense arguments at pages 6-11 of defendant's Motion to Strike [ Docket entry # 72 dated 1/23/06], incorporated herein by reference.
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Co. v. Lakewood Eng's & Mfg. Corp., 982 F.2d 363(9th Cir. 1992). Docket Entry # 67 at page 4, line 23, page 8, line 7, page 11, line 20. However, none of these cases establish a "cause of action" for bad faith. Further there is no cause of action under Arizona law for "spoliation" and Arizona law does not recognize an independent cause of action for "bad faith " destruction of evidence. This having been pointed out by the defendant, she has once again changed direction, ignored clearly established law and now maintains that there is some sort of ubiquitous "Bad Faith" cause of action under Arizona. Her arguments lack merit and are specious. To support her Response she cites a series of Arizona cases which have nothing to do with the issues before and the subject matter jurisdiction of this Court. Deese v. State Farm Mut. Auto. Ins. Co., 172 Ariz. 504, 838 P.2d 1265,1266 (Ariz., 1992). The insured brought breach of contract and bad faith action against her automobile insurer for insurer's refusal to pay portion of medical benefits allegedly due under policy. The Arizona Supreme Court expressly held: " We hold that breach of an express covenant of an insurance policy is not a necessary prerequisite to a tort claim based on bad faith." [Emphasis added]. This litigation is not based on an insurance contract. Further, any potential Arizona common law tort claim cannot be litigated in this action for plaintiff's failure to timely comply with the provisions of the Federal Tort Claims Act. No Ins. Section/Special Fund Div. v. Industrial Com'n of Arizona, 187 Ariz. 131, 927 P.2d 791 (Ariz.App. Div. 2 , 1996), held that A.R.S. §§ 23-907 authorizing the Special Fund to pay compensation to employees who are injured while working for uninsured employers also authorizes Special Fund to pay penalties assessed against those employers for interposing, in bad faith, a fraud defense to employees' claims. Such state statutes, governing workmen's compensation provisions, are not applicable to the Department of Veterans Affairs as a matter of federal law. A state legislature "is without power to compel the federal government to participate in a state
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workmen's compensation program." See, Giannuzzi v. Doninger Metal Products, 585 F.Supp. 1306, 1306 (W.D.Pa.1984). It is readily apparent that the injured federal employee may not bring an action against the United States under the Federal Tort Claims Act, when there is a substantial question as to whether or not the injury occurred in the performance of the employee's duty. Somma v. United States, 3 Cir.1960, 283 F.2d 149. Before such an action may be maintained, the employee must first seek and be denied relief by the Secretary of Labor, acting in his capacity as administrator of the FECA. Eure v. U.S. Postal Service, 711 F.Supp. 1365,1373 (S.D.Miss. 1989). In any event she has failed to exhaust her administrative remedies pursuant to the Federal Tort Claims Act on any Arizona common law tort. Further, even if this court were to interpret plaintiff's request to amend her complaint to raise a contract based "bad faith" cause of action, as plaintiff suggests by the cases cited in her response, such claims would have to be immediately dismissed for lack of subject matter jurisdiction. Exclusive jurisdiction over contractual disputes is vested in the Court of Claims when the damages sought exceed $10,000. 28 U.S.C. § 1346(a); 28 U.S.C.A. § 1491(a)(1) (Tucker Act); Darko v. United States, et. al, 646 F. Supp. 223, 224 (D. Mont. 1986); North Star Alaska v. United States, 9 F.3d 1430 (9th Cir. 1993); North Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir. 1994); Teitelbaum v. U.S. Dept. of Housing and Urban Development, 953 F.Supp. 326 (D.Nev., 1996). Furthermore, this Court does not possess jurisdiction over claims for breach of employment contract that are filed by plaintiffs who are employed by appointment rather than by contract. "[I]f [plaintiff's] employment was by `appointment,' a breach of contract against the government would be precluded" pursuant to the Tucker Act, 28 U.S.C. § 1491. Hamlet v. United States,873 F.2d 1414, 1417 n.5 (Fed. Cir. 1989) (citing United States v. Hopkins, 427 U.S. 123, 128(1976)); Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 738 (1982). The Federal Circuit has stated that there is a "wellestablished principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any
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contractual or quasi-contractual relationship with the government." Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1995). Plaintiff also cites Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (Ariz., 1984), a criminal case. Although a "sample" was lost, the central issue was the denial of the Due Process rights of the defendant. Even more curious is plaintiff's assertion that the Oshrin case turned on the destruction of ten to twelve legal pads which contained notes allegedly critical evidence in the case. In reality the Arizona Court of Appeals was concerned with the loss of a gas chromatograph intoximeter breath sample test used to determine blood-alcohol content which the defendant had requested to be preserved for his own future use. Although the plaintiff cites State v. Walker, 914 P.2d 1320, 1330 (Ariz.App. Div. 1, 1995), a criminal case, in this matter the complete administrative and investigative files in those employment discrimination claims which are properly before this Court were preserved and produced to the plaintiff during the discovery process. Therefore, once again she has failed to establish that she cannot proceed to trial on the timely and justiciable claims, pending before this Court. Further she has not rebutted the fact that in Case # 98-3542, she expressly withdrew her twenty-two (22) to thirty (30) non-selections allegations, which she described as "background information," at the time she filed her November 13, 1998 Formal Complaint. EXHIBITS A and B.
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Therefore, none of these "missing"documents

would have been a part of the formal investigation of her Formal Complaint as she specifically withdrew them. Furthermore, it is a matter of public record that her appeal

Defendant's EXHIBITS A, B, E, G and P are the exhibits filed with Defendant's Response - Docket Entry # 73 dated 1/23/06, incorporated herein by reference.
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(EEOC # 01A01398 EXHIBIT P )

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was dismissed on May 31, 2000 for failure to

timely file her administrative appeal. She abandoned this EEO case by not timely seeking relief in District Court. In case # 99-1321, the Counselor's Report, EXHIBIT E, which addressed only the plaintiff's informal complaint, indeed stated at page 2: The aggrieved submitted a list of twenty two positions that she has applied for at the Medical Center within the past two years. An inquiry was made into a random number of these positions which included the last position she applied for. However, her formal complaint was untimely and case # 99-1321 was dismissed. EXHIBIT G. She neither administratively appealed the adverse decision nor filed a suit in District Court. Therefore she abandoned those claims. As the formal complaint was dismissed as untimely, no formal investigation was conducted and no extensive file or documents or other evidence was collected in case #99-1321. By relying upon Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3, 241, 250 (Ariz.App. Div. 2 1997), the plaintiff, once again, attempts to shift gears in this sanctions dispute, from a cause of action for "bad faith" to the Court's inherent or Rule 37, F.R.Civ.P., authority to impose sanctions . In footnote 5, the Arizona Court of Appeals noted: We note, however, that parties or potential litigants "are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence." Graves v. Daley, 172 Ill.App.3d 35, 38, 122 Ill.Dec. 420, 422, 526 N.E.2d 679, 681 (1988). We also recognize that federal courts have the " inherent power to regulate litigation, preserve and protect the integrity of proceedings before [them], and sanction parties for abusive practices, " including "the destruction of evidence, whether that authority is derived from Rule 37 or from their inherent powers." Turner, 142 F.R.D. at 72, quoting Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989). See also Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993). Assuming arguendo Arizona courts have such inherent powers, they do not justify dismissal in this case. [Emphasis added.]. Souza, clearly argues against a need to amend the Amended Complaint to add a 01A01398 is the EEOC appeal number for case # 98-3542 (aka Case numbers 200P and 200P-0644-2001123655). Defense EXHIBIT P. 2000 WL 757995.
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spoliation or "Bad Faith" claim, as plaintiff has already initiated numerous motions for sanctions based on such principles. This is one reason Arizona refused to recognize the tort of spoliation. See, Sousa, 955 P2d at 249 fn. 1: Arizona does not recognize a separate tort of spoliation of evidence. See LaRaia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986); Dunlap v. City of Phoenix, 169 Ariz. 63, 817 P.2d 8 (App.1990). Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D.Cal., 1984)(Inherent powers of the court and Rule 37, F.R.Civ.P.) does not establish a cause of action for "bad faith." Rather it clearly demonstrates that when, as here, all documents ( the relevant administrative investigative files) related to timely discrimination claims properly before the court have been preserved, were produced to the plaintiff during discovery and no sanctions are appropriate. Plaintiff has already relied upon the Court's inherent powers and the provisions of Rule 37, F.R.Civ.P., as a basis for her numerous motions for sanctions and default judgment. As a result, there is no lawful justification to "bootstrap" a second Amended Complaint to raise claims for spoliation and/or "bad faith." Therefore, her request to file a Second Amended Complaint by adding paragraphs 59 through 124 must be denied as a matter of law. CONCLUSION For the reasons stated herein, paragraphs 28 and 46 of the Amended Complaint and the Proposed Amended Complaint must be stricken and the plaintiff precluded from raising or in anyway relying upon these remote events at the time of trial. The defendant also requests any further relief that the Court may deem appropriate. Further, plaintiff has failed to meet the burdens of proof required to establish a justiciable claim of Spoliation and/or "Bad Faith" as set forth in paragraphs 59 through 124 of the Proposed Amended Complaint and these paragraphs must be stricken. However, the defendant's Motion to Strike is focused solely on these specific paragraphs of the Amended Complaint and the Proposed Second Amended Complaint. The defendant does not otherwise oppose the plaintiff's December 6, 2005 Motion to Amend her Amended Complaint. (Docket Entry # 68).
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Respectfully submitted this 9th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s\ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on February 9, 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: Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 Attorney for plaintiff Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona 85012-1839 3225 North Central Avenue, Room 305 Phoenix, Arizona 85012 s\ John R. Mayfield Office of the U.S. Attorney

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