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' RESPONSE TO PLAINTIFF'S SUPPLEMENTAL DISCLOSURE [OF] ARIZONA COORPERATION (SIC) COMMISSION REGULATION R14Defendants. 2-211 CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit their Response to Plaintiff's Supplemental Disclosure [of] Arizona Cooperation (sic) Commission Regulation R14-2-211 Pursuant to FED. R. CIV. P. 26(e)(1). Plaintiff's Motion must be denied because: (1) Plaintiff failed to set forth a "good cause" basis for untimely disclosing R14-2-211; and (2) Plaintiff misinterprets this Regulation, which actually supports Defendants' position. Accordingly, Defendants respectfully request that this Court deny Plaintiff's Motion.

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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. MEMORANDUM OF POINTS AND LEGAL AUTHORITIES I. PROCEDURAL BACKGROUND Plaintiff seeks to introduce Arizona Corporation Commission ("ACC"), R14-2-211(c), regarding the "termination of [electrical service] with notice." Plaintiff disclosed this exhibit on December 28, 2006, as allegedly "newly discovered evidence." Plaintiff explains, "[i]t has come to the attention of the Plaintiff that within the Defendants trial exhibits #166 the La Paz County Defendants failed to disclose a portion of the ACC rules that prove La Paz County has the authority to order the termination of electrical service on plaintiffs (sic) real property known as Desert Oasis Bargain Center & RV Park. However, they must give a 5 day advance notice." Throughout the course of this litigation, Defendant APS repeatedly advised Plaintiff that "no notice" was required to be given under R14-2-211(b). Section "B" of that Regulation is what Defendant APS relied upon in making the determination to terminate Plaintiff's electrical service. Despite the Court's Order regarding the discovery deadline of November 30, 2005, Plaintiff now seeks to untimely disclose and use R14-2-211(C) of the ACC as a trial exhibit. Because the untimely disclosure lacks a "good cause" basis, Plaintiff has listed the incorrect and irrelevant Regulation ("without notice" versus "with notice") and Plaintiff's untimely disclosure of this exhibit is unduly prejudicial to the Defendants, the Regulation must be precluded as a trial exhibit in this case.

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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 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. Plaintiff initiated this lawsuit on November 12, 2003.
975 F.2d 604, 609 (1992). Id. at 609. 3 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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Plaintiff had over three years to complete discovery, yet chose to sit idly by until a month before the second trial of this case to request that additional exhibits be allowed into evidence at trial. Allowing Plaintiff to now have additional time to locate and disclose additional exhibits, 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 R14-2-211(c) must be precluded as a trial exhibit in his case. Moreover, notably absent from Plaintiff's disclosure of R14-2-211(C) is a "good cause" basis for failing to disclose the exhibit earlier. Instead, Plaintiff "blames" the Defendants for not including Section 401 as an Exhibit in the Joint Pretrial Statement. This is insufficient to show "good cause" for allowing the exhibit to come into evidence at trial. Accordingly, Plaintiff's Motion must be denied and R14-2-211(C) must be precluded at trial. B. ACC R14-2-211(C) 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. As the Court is aware, the ACC does not apply to municipal entities. Instead, the ACC Regulations provide the law for Corporations, including former Defendant APS. As both APS and the La Paz County Defendants have repeatedly stated, APS relied on R14-2-211(B), not R14-2-211(C). Section "C" as relied upon by Plaintiff requires five days notice before termination of electrical service. However, Section "C" does not trump Section "B" which allows APS to act without notice where there is an obvious safety hazard. In other words, APS did not have to give "notice" (or get a Court
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Order) to terminate Plaintiff's electrical service because they independently identified an "obvious safety hazard." Thus, Plaintiff's attempt to introduce evidence of Section C, which requires some type of "notice" to the client is improper and irrelevant to the issues remaining in this case. C. Any Probative Value of ACC R14-2-211(C) 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 R14-2-211(C) to corroborate their allegation that La Paz County worked in concert with APS in failing to give Plaintiff "Notice" before terminating his electrical service. As outlined above, La Paz County does not have authority to terminate electrical service under the ACC. Only APS can do that. If the jury hears testimony on this type of irrelevant evidence, there is a strong possibility the jurors will erroneously view the information as evidence of wrongdoing by La Paz County pursuant to the incorrect legal standard, rather than deciding this case on its merits. Because introduction of R14-2-211(C) as a trial exhibit would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. III. CONCLUSION Based on the foregoing, Defendants respectfully request the Court deny Plaintiff's Supplemental Disclosure [of] Arizona Coorperation (sic) Commission Regulation R14-2-211 Pursuant to FED. R. CIV. P. 26(a)(1).

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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 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 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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