Free Objection - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] Attorney for Defendants Brad Weekley and Guy Gorman UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA James W. Field, Plaintiff, v. County of La Paz, et al., DEFENDANTS' OBJECTION TO PLAINTIFF'S SUPPLEMENTAL DISCLOSURE REGARDING COMPENSATION OWED TO PERSONAL ASSISTANT TAMMY Defendants. DOUD CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit this Objection to Plaintiff's Supplemental Disclosure Regarding Compensation Owed to Personal Assistant Tammy Doud filed on December 28, 2006. Tammy Doud is not a party to this litigation and not entitled to damages. Moreover, the evidence is hearsay and lacks foundation. Accordingly, Defendants respectfully request that this Court prohibit any evidence or testimony on the compensation allegedly owed to Tammy Doud as disclosed in Plaintiff's Supplemental Disclosure Statement. This motion is supported by the following Memorandum of Points and Legal Authorities, the pleadings and exhibits on file with the Court, and any oral argument the Court may hold in this matter.

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MEMORANDUM OF POINTS AND LEGAL AUTHORITIES PROCEDURAL BACKGROUND Plaintiff seeks to introduce, "for calculatible (sic) damages Plaintiff discloses 2 Time sheet (sic) of his personnel (sic) assistants (sic) in which Plaintiff owes Ms. Doud for the time she has put in on this matter. The 1st time sheet is an average month however the 2nd time sheet is from June when we had the 1st trial...Plaintiff feels this damages should be paid for by defendants as had plaintiffs electrical service not been terminated Ms. Doud would not of been spending her time on this litigation." As the Court is aware, the discovery deadline in this case has long passed. Plaintiff did not disclose the alleged "damages" information prior to the close of discovery or prior to the first trial. Instead, Plaintiff waited until one month before the second trial to disclose this information and to make a claim that he is entitled to recover for Ms. Doud's work. II. LEGAL ARGUMENT. A. No Good Cause Exists for Plaintiff's Late Disclosure. Pursuant to Rule 26(a)(1)(B), Plaintiff was required to disclose "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment." As outlined in Rule 37(C)(1), FED. R. CIV. P., a party who fails to timely disclose documents or other tangible exhibits, "shall not, unless such failure is harmless, be permitted to use evidence at trial ... the information or witness not disclosed." Under Johnson v. Mammoth Recreations, Inc., when a party attempts to set aside or adjust the deadlines set in the Scheduling Order, "good cause" must be shown.1 Once the District Court has filed a Pretrial Scheduling Order pursuant to FED. R. CIV. P.
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975 F.2d 604, 609 (1992).
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16, establishing a timetable for amending pleadings, the "schedule cannot be modified except by leave of ... [the district court] upon a showing of good cause."2 Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension."3 Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Thus, if a party was not diligent in complying with the Court's deadlines, the inquiry should end.4 In this case, Plaintiff failed to disclose the "compensation documentation" for Tammy Doud before the discovery deadline. Instead, Plaintiff inappropriately chose to sit idly by until a month before the second trial of this case to disclose this information. Allowing Plaintiff to now have additional time to disclose these documents, will reward both Plaintiff's non-diligence and non-compliance with the Court Ordered deadlines established in this case. This severely prejudices the Defendants who have complied with the deadlines established by the Court and are less than one week away from beginning the second trial of this case. This untimely disclosure cannot be tolerated and the

"compensation documentation" must therefore be precluded as trial exhibits. Moreover, notably absent from Plaintiff's disclosure of the damages documents is a "good cause" basis for failing to disclose the "damages documentation" earlier. Without any evidence as to why Plaintiff sat idly by until one month before the second trial of this case before disclosing the documents as trial exhibits, Plaintiff cannot

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Id. at 609. See generally Coleman v. Quaker Oats Co., 232 F.3d 1271 (Ariz. 2000); Johnson, 975 at 609; Fed. R. Civ. P. 16 advisory committee's notes (1983) amendment; Amcast Indus. Corp. v. Detrex Corp., 132 F.R.D.213, 217 (N.D. Ind. 1990); 6A Wright, Miller & Kane, Federal Practice and Procedures § 1522.1 at 231 (2d. ed 1990) ("good cause" means scheduling deadlines cannot be met despite party's diligence). 4 Johnson, 975 at 609.
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establish a "good cause" basis for allowing the exhibits to come into evidence at trial. Accordingly, the "compensation documentation" must be precluded at trial. B. Tammy Doud's Compensation Records Are Irrelevant.

FED. R. EVID. 401 states that relevant evidence is evidence that tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In this case, only the Plaintiff's damages are at issue. Tammy Doud is not a party and cannot make a claim of damages against the Defendants. Accordingly, Tammy Doud's "compensation documentation" is irrelevant to the damages issues raised by Plaintiff in this case and must be precluded under Rule 401. C. Any Probative Value Regarding the "Compensation Documentation" Is Outweighed By Its Prejudicial Effect. FED. R. EVID. 403 precludes the admission of evidence when the probative value is substantially outweighed by any unfair prejudice. Defendants anticipate that Plaintiff will attempt to introduce the "compensation documentation" to support his claim of damages against the Defendants. If the jury hears testimony on this type of inappropriate and speculative damages information, there is a strong possibility the jurors will erroneously view the information as evidence of additional documents that should be awarded against La Paz County. Because introduction of the "compensation information" would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. II. CONCLUSION Based on the foregoing, Defendants respectfully request the Court prohibit evidence or testimony regarding the alleged compensation owed to Personal Assistant Tammy Doud as disclosed in Plaintiff's Supplemental Disclosure filed on December 28, 2006.

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DATED this 16th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley, Guy Gorman ORIGINAL of the E-filed filed this 16th day of January, 2007, with: COPYth the foregoing mailed of this 16 day of January, 2007, to: James. W. Field PO Box 248 Salome, Arizona 85348 Plaintiff Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm 3101 North Central Avenue Suite 720 Phoenix, AZ 85012 Attorney for Co-Defendants By /s/ Peggy Sue Trakes

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