Free Supplement - District Court of Arizona - Arizona

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David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertsons, Inc., a corporation, Defendant. No. CIV-O3-2268-PHX-NVW PLAINTIFF'S SUPPLEMENT AND AMENDMENT TO JOINT PROPOSED FINAL PRETRIAL ORDER, JOINT PROPOSED JURY INSTRUCTIONS AND SUPPLEMENTARY OBJECTIONS TO JURY INSTRUCTION 12.C AND TO DEFENDANT'S SPECIAL VERDICT FORM Plaintiff Lewis Silverman submits the following supplement and amendment to the Joint Proposed Final Pretrial Order, joint proposed jury instructions and supplemental objections to Jury Instruction 12.C and to defendant Albertsons, Inc.'s special verdict form. Plaintiff hereby supplements and amends the Joint Proposed Pretrial Order, Section D. to address issues 3 and 4 therein. As set forth below, whether defendant had a lawful reason for terminating Silverman's employment and whether defendant would have fired Silverman anyway, despite a finding that Jewishness was a motivating factor in his termination, is not an issue that may be tried in this action because defendant did not allege this as an affirmative defense in its answer and has therefore waived this defense pursuant to FRCP 8(c). On the due date for filing of the Joint Proposed Pretrial Order, the drafts of the Proposed Pretrial Order, jury instructions and verdict form did not assert issues and plaintiff's counsel was told that defendant was not asserting the affirmative defense that it would have terminated employment for a lawful reason even if his religion was a motivating

Case 2:03-cv-02268-NVW

Document 105

Filed 10/10/2005

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factor. After defendant requested an extension of the time for filing the Proposed Pretrial Order, a new attorney, Tom Stahl, took over as defendant's counsel for drafting the pretrial documents and added the improper issues and jury instruction for the defense. Plaintiff's proposed verdict form still reflects that the affirmative defense is not to be tried.1 Since the proposed pretrial order and jury instructions were submitted, plaintiff's counsel has had the opportunity to review the pleadings, discovering that defendant has waived the affirmative defense because it did not plead in its answer the affirmative defense limiting plaintiff's remedies on a finding of motivating factor. Plaintiff also objects to the Ninth Circuit Model Jury Instruction 12.C on the grounds that it instructs the jury regarding the unpled affirmative defense which has been waived. The Court should not give this instruction as proposed because it instructs the jury on an affirmative defense which defendant did not allege in its answer and, therefore, waived pursuant to FRCP 8(c). Plaintiff objected to defendant's special verdict form that included questions on the affirmative defense and offered an alternative special verdict form that omitted the objectionable jury questions on that affirmative defense. MEMORANDUM OF POINTS AND AUTHORITIES FRCP 8(c) requires a defendant, in answering a complaint, to "set forth affirmatively . . . [list of specific affirmative defenses omitted]. . . and any other matter constituting an avoidance or affirmative defense." "Failure to plead an affirmative defense therefore results in a waiver of that defense." Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 819

The changes asserting the affirmative defense were sent to plaintiff's counsel while he was in the second week of a jury trial in Judge Martone's Court where he was co-counsel for the plaintiff and he did not have time to review the changes until the afternoon of September 22, 2005, the new due date for filing the pretrial documents set by the Court when granting defendant's motion for an extension of time to file them. In plaintiff's counsel's trial, the jury went into deliberation at 2:35 p.m. on Thursday, September 22, 2005. Plaintiff arrived at his office around 3:30 p.m. and began the review of the newly changed proposed pretrial order and jury instructions. Judge Martone's court called at 4:00 p.m. to say that the jury had a verdict (very quick turn around for a plaintiff's verdict as it turned out), so plaintiff emailed the documents with some revision to defendant's counsel and rushed back to Court. -2Case 2:03-cv-02268-NVW Document 105 Filed 10/10/2005 Page 2 of 4

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(C.A.9 2004). See also 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §§ 1278 (1990))(A party's failure to plead an affirmative defense "results in the waiver of that defense and its exclusion from the case.") A statutory affirmative defense may be alleged by a defendant in a Title VII claim as follows: Congress . . . passed the Civil Rights Act of 1991 . . . , which provides, among other things, that (1) an unlawful employment practice is established "when the complaining party demonstrates that ... [religion] ... was a motivating factor for any employment practice, even though other factors also motivated the practice," 42 U.S.C. §§ 2000e-2(m), and (2) if an individual proves a violation under §§ 2000e-2(m), the employer can avail itself of a limited affirmative defense that restricts the available remedies if it demonstrates that it would have taken the same action absent the impermissible motivating factor, §§ 2000e-5(g)(2)(B). [Emphasis added] Desert Palace, Inc. v. Costa 539 U.S. 90, 123 S.Ct. 2148, 2149 (U.S.,2003). Thus, if plaintiff proves that religion was a motivating factor in his termination along with other factors, pursuant to FRCP 8(c), Albertsons was required to plead in its answer to the complaint the statutory § 2000e-5(g)(2)(B) affirmative defense which limits damages upon a demonstration that the defendant would have terminated Silverman anyway. Defendant did not plead this affirmative defense. Therefore, the issues may not be tried and the Pretrial Order should not include issues three and four regarding this affirmative defense. Further, the last sentence of proposed jury instruction Ninth Circuit Model Instruction 12.C includes the following last sentence: The plaintiff is entitled to monetary damages if you find that the defendant's decision was motivated both by religion and a lawful reason, unless the defendant proves by a preponderance of the evidence that the defendant would have made the same decision even if the plaintiff's religion had played no role in the employment decision. The highlighted underlined language in this sentence is an instruction on the unpled affirmative defense which defendant has waived. The Court should, therefore, strike the highlighted underlined language from the model instruction for trial because it is an improper instruction of the law in this case. -3Case 2:03-cv-02268-NVW Document 105 Filed 10/10/2005 Page 3 of 4

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Finally, plaintiff has objected to defendant's special verdict form on the grounds that it does not follow the law and includes jury questions on the unpled affirmative defense. Defendant's special verdict form includes questions regarding the unpled affirmative defense and should not be given because defendant has waived the affirmative defense pursuant to FRCP 8 (c). Plaintiff has submitted an alternative special verdict that conforms to the law, omitting jury questions on the unpled affirmative defense. The Court should give plaintiff's proposed special verdict form. CONCLUSION For all of the foregoing reasons, the Court should not include proposed issues three and four in the parties' proposed pretrial order, strike the aforementioned improper language from proposed 9th Circuit Model Instruction 12.C, and give plaintiff's version of the submitted verdict forms. Respectfully submitted this 10th day of October, 2005. DAVID C. LARKIN, P.C. By: s/ David C. Larkin David C. Larkin Attorney for Plaintiffs

Electronic notice and service of documents provided to: Jeffrey L. Lowry, Esq. Thomas L. Stahl, Esq.
Aaron C. Viets, Esq.

Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third Street NW, Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendant /s David C. Larkin

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