Free Response to Motion - District Court of Arizona - Arizona

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Jeffrey L. Lowry, SBN 8293 (New Mexico ­ Pro Hac Vice) Aaron C. Viets, SBN 12164 (New Mexico ­ Pro Hac Vice) Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third St., NW, Suite 2200 Albuquerque, New Mexico 87102 Telephone: (505) 765-5900 Paul A. Conant, SBN 012667 Thomson Conant, PLC Northern Trust Bank Tower, Suite 925 2398 East Camelback Road Phoenix, AZ 85016 Telephone: (602) 508-9010 Attorneys for Defendants Albertsons, Inc. and Debra A. Collette

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertson's, Inc., a corporation, and Debra A. Collette, Defendants. CIV-03-2268 PHX/NVW

DEFENDANT ALBERTSONS, INC.'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RE: OTHER CLAIMS

Plaintiff argues that the Court should refuse to admit evidence that he asserted other claims against Defendant and that the Court granted summary judgment on these claims. Plaintiff's position is that evidence regarding his other claims and their disposition is either not relevant or has probative value that is substantially outweighed

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by the danger of unfair prejudice or confusion among the jurors. Plaintiff is mistaken. Such evidence is relevant and it is not unfairly prejudicial or confusing. I. Evidence that Plaintiff brought an age discrimination claim is relevant. Plaintiff will argue to the jury that he lost his job because he is Jewish. The fact that he also had different theories for his firing (age discrimination in particular) could lead a juror to conclude that even Plaintiff is not fully convinced he was fired due to his religion. A juror could also reasonably conclude, given the presence of the alternate claims, that Plaintiff is simply upset at having lost his job and has responded by bringing every cause of action he could think of, valid or otherwise. That is, a juror could find that the presence of the alternate claim makes it "less probable than it would be without the evidence" that Plaintiff was in fact a victim of religious discrimination. Fed. R. Evid. 401. Thus, evidence that Plaintiff brought an alternative discrimination theory is relevant. II. Evidence that Plaintiff brought a failed age discrimination claim is not unfairly prejudicial or confusing. Plaintiff suggests he will suffer unfair prejudice from the jury hearing that the Court granted summary judgment to Albertsons and Debra Collette on two of his claims. He also argues that the summary judgment standard would confuse the jury. These positions are wrong. Indeed, the need to avoid confusion and prejudice is why the Court should admit evidence regarding the disposition of the alternate theories. The jurors must be informed that those theories (the age discrimination claim in particular) have been dismissed so that they understand they are not seated to decide the merits of those causes of action. It should not confuse the jury to hear the summary judgment standard--that no

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reasonable juror could find a violation of law, Coleman v. Quaker Oats Co., 232 F.3d 1271, 1287 (9th Cir. 2000)--but it is not necessary to instruct on this point. The jury merely needs to understand that Plaintiff at one time asserted several theories as to why he was fired and that all theories but his claim of religious discrimination have been dismissed. II. The principle of completeness requires admission of evidence that Plaintiff asserted an age discrimination claim against Defendant but lost. The Court should deny Plaintiff's motion in limine for the additional independent reason that Plaintiff cannot have his cake and eat it too. Plaintiff stated under oath that former Defendant Debra Collette--the person whom he accuses of making the religionrelated marks at the heart of his case--said things that he construed as "knock[s]" against him due to his age. Pl's Dep. p. 53, line 15 to p. 54, line 1, attached as Ex. A; Pl.'s Decl., ¶ 6, attached as Ex. B. Plaintiff also claims that Ms. Collette cut his hours and gave them to a much younger man. Pl.'s Decl., ¶ 8. Plaintiff's motion in limine and his proposed order appear to leave room for him to offer such evidence. Defendant believes evidence of alleged age-related comments and actions by Ms. Collette are not relevant and would only serve to inflame the jury against Albertsons and her. Defendant will therefore object to such testimony if Plaintiff offers it at trial. But, if the Court overrules the objection, in the interest of completeness, Defendant must be permitted to elicit evidence that Plaintiff brought an age discrimination claim and that the Court dismissed it on the ground that no reasonable juror could conclude Plaintiff was a victim of age discrimination. See United States v. Collicott, 92 F.3d 973, 983 n.12 (9th Cir. 1996) (applying completeness principle in Fed. R. Evid. 106 and 611). Plaintiff's motion should therefore be denied.

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Conclusion It is relevant that Plaintiff has taken multiple positions as to why he was fired. This evidence hurts Plaintiff's religious discrimination case, but that does not mean the probative value of such evidence "is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues." Fed. R. Evid. 403. Evidence that Plaintiff brought an age discrimination claim and that it failed takes on added relevance and necessity if Plaintiff testifies that Ms. Collette commented about his age even indirectly or replaced him with a younger man. Defendant therefore respectfully requests that the Court deny Plaintiff's motion in limine. Dated this 8th day of September, 2005. Respectfully submitted, RODEY DICKASON SLOAN AKIN & ROBB, P.A.

/s/ Jeffrey L. Lowry Aaron C. Viets 201 Third St., Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendants CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Defendant Albertsons, Inc.'s Response to Plaintiff's Motion in Limine Re: Other Claims was sent electronically on this 8th day of September, 2005 to all counsel of record.

By

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