Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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' RESPONSE TO PLAINTIFF'S MOTION REQUESTING PERMISSION TO DISCLOSE NEWLY DISCOVERED EVIDENCE AND INFORMATION: Defendants. DAMAGES CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit their Response to Plaintiff's Motion Requesting Court's Permission to Disclose Newly Discovered Evidence and Information: Damages. Plaintiff's Motion must be denied because: (1) Plaintiff failed to set forth a "good cause" basis for untimely disclosing the "newly discovered damages information"; (2) the damages documentation relates to claims not in issue and are thus irrelevant; (3) the information contains hearsay and lacks foundation; and (4) the Defendants would be unduly prejudiced by Plaintiff's use of these exhibits at trial. Accordingly, Defendants respectfully request that this Court deny Plaintiff's Motion. 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.
1733407.1

Case 2:03-cv-02214-SRB

Document 302

Filed 01/16/2007

Page 1 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1 2

MEMORANDUM OF POINTS AND LEGAL AUTHORITIES I. PROCEDURAL BACKGROUND Plaintiff seeks to introduce a "newly discovered newspaper article in reference to Emotional and Mental Damages. Plaintiff has recently discovered an Article in the Parker Pioneer Newspaper has caused him a great deal of embarrassment Due to his living in a small community. Also shows proof that La Paz County Defendants had other Motives for shutting down Plaintiffs (sic) property." Plaintiff also seeks to include select pages (8-15) of an alleged La Paz County Board of Supervisors Meeting held on November 6, 2006. 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. 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 975 F.2d 604, 609 (1992). Id. at 609.
2

1733407.1

Case 2:03-cv-02214-SRB

Document 302

Filed 01/16/2007

Page 2 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

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 has not been diligent in obtaining relevant discovery materials to support his claim. The newspaper article Plaintiff seeks to disclose is dated September 20, 2006, nearly three months prior to the filing of the subject Motion. The alleged Board of Supervisors meeting minutes are dated November 6, 2006, nearly two months prior to the filing of the subject Motion. Plaintiff has inappropriately chosen to sit idly by until a month before the second trial of this case to disclose information available to him months ago. Allowing Plaintiff to now have additional time to disclose these damages 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 and prejudicial action by the Plaintiff cannot be tolerated and the newspaper article and Board of Supervisors meeting minutes must therefore be precluded as trial exhibits in his case. Moreover, notably absent from Plaintiff's disclosure of the damages documents is a "good cause" basis for failing to disclose the exhibit 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 establish a "good cause"
3

24 25 26

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.
1733407.1

3

Case 2:03-cv-02214-SRB

Document 302

Filed 01/16/2007

Page 3 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

basis for allowing the exhibit to come into evidence at trial. Accordingly, Plaintiff's Motion must be denied and the damages documents must be precluded at trial. B. The "Damages" Documentation Is Irrelevant to Issues in Case. 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, the sole remaining issue is whether La Paz County violated Plaintiff's right to due process by requesting APS terminate his electrical service due to hazardous conditions on the property. Plaintiff's proposed testimony related to the

"damages" document is irrelevant for two reasons. First, the Board of Supervisors meeting minutes and newspaper article fail to relate to the above-identified remaining issue in this case. Second, neither the newspaper article nor the Board of Supervisors meeting minutes would make it more or less probable that Plaintiff's constitutional rights were violated when the electrical service was terminated by APS. Because the unrelated "damages documentation" is irrelevant to the remaining liability issues raised in this case, the exhibits must be precluded at trial. C. Any Probative Value Regarding the "Damages" Documents 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

20 Plaintiff will attempt to introduce evidence of the newspaper article and Board of 21 Supervisors meeting minutes to corroborate his allegation that there is a "conspiracy" 22 among the La Paz County Defendants (a claim that has been dismissed by this Court). If 23 the jury hears this type of irrelevant evidence there is a strong possibility the jurors will 24 erroneously view the information as evidence of wrongdoing by La Paz County, rather 25 than deciding this case on its merits. 26
1733407.1

4

Case 2:03-cv-02214-SRB

Document 302

Filed 01/16/2007

Page 4 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Because introduction of the newspaper article and Board of Supervisors meeting minutes would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. D. The "Damages Documents" Are Hearsay and Lack Foundation.

Moreover, the subject newspaper article and Board of Supervisors meeting minutes are inadmissible hearsay under FED. R. EVID. 803. In addition, the documents lack proper foundation or authentication under FED. R. EVID. 901. Accordingly, these documents must be precluded as exhibits at trial. III. CONCLUSION Based on the foregoing, Defendants respectfully request the Court deny Plaintiff's Motion Requesting Court's Permission to Disclose Newly Discovered Evidence and Information: Damages. DATED this 16th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman Randall H. Warner 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright 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
1733407.1

5

Case 2:03-cv-02214-SRB

Document 302

Filed 01/16/2007

Page 5 of 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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

1733407.1

6

Case 2:03-cv-02214-SRB

Document 302

Filed 01/16/2007

Page 6 of 6