Free Reply to Response to Motion - 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 UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA Martha Slaughter-Payne, Plaintiff, vs. ANTHONY PRINCIPI, SEC DEPT. OF VETERANS AFFAIRS AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV03-2300 PHX ROS

PLAINTIFF'S REPLY TO DEFENDANTS RESPONSE TO PLAINTIFF MOTION TO STRIKE and OBJECTIONS REGARDING DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Martha Elizabeth Slaughter-Payne (hereinafter referred to as "Liz") submits her response to defendants Motion for Summary Judgment. This motion is supported by the following Memorandum of Points and Authorities filed concurrently herewith. DATED this 25th day of August, 2006 Patterson & Associates, P.L.L.C. s/ Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORTIES I. ARGUMENT A. DEFENDANT'S RESPONSE HAS FAILED TO PROVIDED ANY JUSTIFICATION FOR THEIR VIOLATION OF L. R. Civ. 56.1(a) AND EACH STATEMENT IN VIOLATION OF THE RULE MUST BE STRICKEN. Defendant's response failed to address the issue that they have violated L. R. Civ 56.1(a). Local Rule 56.1(a) requires that a separate concise statement of material facts in support of its motion for summary judgment be filed. Defendant's Statement of Facts numbered 1, 7, 16, 20, 23, 24, 26, 31, 32, 33, 34, 35, 35, 36, 37, 38, 39, 40, 41, 42, 49, 52 and 53 must be stuck because they are not separate concise statements and are in narrative form which is prohibited. L. R. Civ. 56.1(a). Defendant's response failed to address the issue that they have violated L. R. Civ 56.1(a) in Defendant's Statement of Facts numbered 30, 31, 35, 36, 37 and 38. Defendant used these numbers twice however, the text in those Statements of Fact numbered 30, 31, 35, 36, 37 and 38 is not the same, thereby causing confusion for Plaintiff in disputing Defendant's Statement of Facts and in responding to Defendant's motion. Defendant's response failed to address the issue that they have violated L. R. Civ 56.1(a) in Defendant's Statement of Facts numbered 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 17 and 35 because Defendant failed to use these facts in their argument they can only be considered nonmaterial facts and no weight can be given to them. Defendant's response failed to address the issue that Defendant's Statement of Facts number 28 is not admissible. Defendant's Statement of Facts number 28 refers to Defendant's Exhibit 18, which is Plaintiff's Exhibit 19 that has documents that were created in 2002. Defendant's Exhibit 18 is hearsay and inadmissible. Defendant's response failed to address the issue that they have violated L. R. Civ 56.1(a) in Defendant's Statement of Facts numbered 1, 21 and 51 because Defendant failed to refer to the specific portion of the record where these facts are found.
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In closing, Defendant's response has failed to address the issue that they have violated L. R. Civ 56.1(a). Therefore Defendant's Statement of Facts numbered 1, 2, 3, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 23, 24, 26, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 49, 51, 52 and 53 must be struck because defendants have failed to show that they did not violate Local rule 56.1(a)

B. DEFENDANT CANNOT REQUEST CHANGES PLAINTIFF'S ANSWERS TO THEIR REQUEST FOR ADMISSIONS WITHOUT FOLLOWING THE RULE 16 SCHEDULING ORDER. Liz is not contesting whether a party can set forth admissions in their Statement of

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Facts. Liz is objecting to Defendant's argument in their Statement of Facts requesting that her denials and objections be turned into admissions. Defendant's Statement of Facts numbered 31, 32, 33, 36, 37, 38, 39, 40, 41 and 52 is an argument to the court requesting that Plaintiff's Answers to Defendant's Request for Admissions become admitted. Under Fed. R. Civ. P 36(a) a party on whom request to admit has been served can object, admit or deny. Liz denied or objected to Statement of Facts numbered 31, 32, 33, 36, 37, 38, 39, 40, 41 and 52 defendant did not object to her response. Now in a Statement of Facts (not in a motion) Defendant argues to the court requesting that Plaintiff's Answers to Defendant's Request for Admissions become admitted. This is clearly an end run attempt by Defendant to bring forward a discovery dispute in violation of rule 16 scheduling order. The Plaintiff answered Defendant's Request for Admissions in a timely manner on or about November 30, 2005. Defendant had from approximately November 30, 2005 through March 27, 2006, the end of the discovery period to dispute Plaintiff's answers, yet Defendant did not. It is now improper based on the Courts Rule 16 order to make an argument in the Statement of Facts disputing Liz's answers for Defendant's Request for

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Admissions.

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C. THE AFFIDAVITS OF PONCE AND HUCKABY MUST BE STRUCK BECAUSE THEY ARE NOT BASED ON PERSONAL KNOWLEDGE IN VIOLATION OF FEDERAL RULE OF EVIDENCE 701, 801 AND 803(6) Defendant now claims that the affidavits of Mauricio G. Ponce ("Ponce") and

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Donald Huckaby, Jr. ("Huckaby) are admissible under Fed. R. Evid. 803(6). The
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business record exception is based on the theory that accuracy and trustworthiness are
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assured "by systematic checking, by regularity and continuity which produce habits of
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precision, by actual experience of business in relying upon them, or by a duty to make an
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accurate record as part of a continuing job or occupation." See Advisory Committee Note
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to Rule 803(6). In short, "businesses have incentives to keep accurate records."
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Timberlake Constr. Co. v. U.S. Fid. and Guar. Co., 71 F.3d 335, 341-42 (10th Cir. 1995).
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To ensure this accuracy, the person furnishing the information to be recorded must have
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been acting "routinely, under a duty of accuracy, with employer reliance on the result."
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Advisory Committee Note to Rule 803(6). If the supplier of information does not act in
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the regular course of business, a separate hearsay exception must apply to the hearsay
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within hearsay statement. Id.; U.S. v. Ray, 930 F.2d 1368, 1370 n.6 (9th Cir. 1990) ("Of
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course, if the person providing the information in the business record is not acting under a
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duty of accuracy in the regular course of business, a double hearsay problem may
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arise.'"). For example, a police officer's report will be considered a business record
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because he prepared it in the ordinary course of his business under a duty to report
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accurately, but a bystander's statement to the officer included within the report will not be
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admissible because the bystander was not acting in the ordinary course in making a
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statement to the officer. See Advisory Committee Note on Rule 803(6); Bemis v.
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Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995) (911 tapes admissible as business record
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but because citizens who call in are not under a duty to report, their statements must meet
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a separate hearsay exception). Additionally, records compiled in anticipation of litigation,
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including attorney work product, generally are not business records because they are not
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prepared in the ordinary course of business. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1258-59 (9th Cir. 1984); Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994); Timberlake Constr. Co., 71 F.3d at 342 ("It is wellestablished that one who prepares a document in anticipation of litigation is not acting in the regular course of business."). This is so because "'where the only function that the report serves is to assist in litigation or its preparation, many of the normal checks upon the accuracy of business records are not operative.'" Paddack, 745 F.2d at 1259 (citing McCormick on Evidence § 308, at 877 n.26 (E. Cleary 3d ed. 1984)). Ponce and Huckaby affidavits are not business records and Fed. R. Evid. 803(6) business record exception does not apply. It is not Ponce and Huckaby's regularly conducted activity to rate Liz's qualification for a position. Ponce and Huckaby's evaluation of Liz was not "made at or near the time" of the selection process nor do they have any "knowledge" of Liz. Ponce and Huckaby's evaluation lacks trustworthiness. Ponce and Huckaby evaluation was prepared in anticipation of litigation. The documents were developed and gathered by an unknown third party and developed after the selection process in determining Mr. Pyle's skills. The affidavits of Ponce and Huckaby fail to meet the requirements of Fed. R. Evid. 701, 801 and 803(6) and are therefore inadmissible.

D. DEFENDANT'S FAILS TO RESPOND TO THE ISSUE THAT THEIR SUMMARY JUDGMENT MOTION MUST BE STRUCK BECAUSE THEY VIOLATE FED. R. CIV. P. 56(C) AND L. R. CIV. R. 7.1(B). Sections III, IV, V, and VI of Defendant's Motion for Summary Judgment must be struck because they violated Fed.R.Civ.P. 56(c). In sections III, IV, V, and VI,

Defendant has failed to cite to the record or to any affidavit, which will support the absence of a genuine issue of material fact. Essentially, Defendant merely relies upon conclusionary statements of the attorney. Conclusionary assertions are not accepted as
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facts. Lombard's Inc. v. Prince Manufacturing, Inc., 753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082, 106 S. Ct. 851, 88 L. Ed. 2d 892 (1986); Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 74 L. Ed. 2d 953, 103 S. Ct. 729 (1983). Additionally, Defendant's entire motion must be struck because it is in violation of L. R. Civ. 7.1(b). Local Rule 7.1 prohibits the font size of a motion to be no smaller than 13 point. In Defendant's motion, Defendant used a type font similar to "Times New Roman 12," which contains twelve characters per inch. This results in a minuscule type size which is much more difficult to read than the required type size. It is clear that Defendant is utilizing the minuscule type size for the sole purpose of circumventing the courts page limits on opening briefs. Had Defendant used the correct type size for the motion, they would have undoubtedly exceeded the seventeen page limit by several pages. E. DEFENDANT CANNOT BE "CONTRARY TO LOCAL RULE 7.2(B)" AND MUST BE SANCTIONED FOR VIOLATING LOCAL RULES AND COURT ORDERS.

Defendants cannot be contrary to the Local Rules. Failure to follow a district
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court's local rules is a proper ground for dismissal." Ghazali v. Moran, 46 F.3d 52, 53
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(9th Cir. 1995). Moreover, failure to obey court orders is a separate and distinct ground
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for imposing the sanction of dismissal. See Sanders v. Union Pacific Railroad Company,
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154 F.3d 1037, 1998 WL 559790 (9th Cir. 1998). The defendant has violated the local
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rules and the Court's Rule 16 order. The court must sanction Defendant for violating the
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rules subject to limits upon the court's inherent power and statutory authority. See
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Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 520-21 (9th Cir. 1983). These
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limits require at a minimum that the sanctions order be supported with an explicit finding
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of an attorney's bad faith, and that the misconduct amount to more than a negligent
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transgression of local rules. See Zambrano v. City of Tustin, 885 F.2d 1473, 1478, 1480 (9th Cir. 1989). In this case, Defendant's actions are in bad faith. Defendant did not request a stipulation from Plaintiff for additional pages. Nor file an ex-parte application showing good cause why it should be permitted to exceed the page limitation or arranged a conference call with the Court to resolve the dispute. Defendant ignored all of these options. Instead, he violated the court's order by submitting a motion in a font size smaller then 13 point. The court should sanction the Defendant and award attorney fees and costs to Plaintiff especially since this is Plaintiff's third request for sanctions involving the same actions.

II.

CONCLUSION For the reasons adduced in Plaintiff motion and outlined above this Court should

strike Defendants Motion for summary judgment and strike Defendants Statement of Facts and Ponce and Huckaby's Affidavit. The Court should sanction the Defendant and its attorneys by entering a default judgment against the Defendant. In addition, this Court should sanction Defendant and its attorneys by imposing monetary sanctions, including attorney fees and for such other and further relief as this Court deems just and proper. Dated this 25th day of August, 2006.

s/Rosval A. Patterson Rosval A. Patterson 777 East Thomas Road, Suite #210 Phoenix, AZ 85014 Attorney for the Liz

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CERTIFICATE OF SERVICE I hereby certify that on the 25th of August, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems 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 U.S. mail to: The Honorable Judge Roslyn Silver United States District Court 401 West Washington Courtroom 604 Phoenix, AZ 85003

s/Stephanie Coulter

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