Free Response to Motion - 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. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PERMISSION TO DISCLOSE NEWLY DISCOVERED WITNESS: BARBARA BRIGGS 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 Witness and Information: Barbara Briggs. Plaintiff's Motion must be denied because: (1) Plaintiff failed to set forth a "good cause" basis for untimely disclosing the witness; (2) the "expected witness testimony" is irrelevant to the sole issue remaining in this case; and (3) Defendants would be unduly prejudiced by allowing Plaintiff's untimely disclosed witness to testify at trial 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 filed his Initial Complaint on November 12, 2003. Plaintiff

subsequently filed his Amended Complaint on March 15, 2004. The parties subsequently participated in a pretrial conference on July 25, 2005, during which the Court set the discovery deadline for November 30, 2005.1 On December 28, 2006, Plaintiff disclosed Barbara Briggs who is "expected to provide testimony concerning APS terminating electrical power to their Motel [International Inn] without notice due to an immediate hazard found within the electrical distribution system servicing the Briggs Motel. Mrs. Briggs is further expected to testify as to what APS required before they would restore power. Mrs. Briggs will also testify La Paz County Department of Community Development ok'd the power to be restored after the Briggs did some repairs however, APS would not reenergize the Motel until further repairs were made. Additionally, Mrs. Briggs will testify to any and all knowledge or information she may have regarding the action taken against Plaintiff, including injuries and damages suffered by Plaintiff." Trial is scheduled to begin in this matter on January 23, 2007. Despite the Court's Order regarding the discovery deadline, Plaintiff now seeks to untimely disclose Barbara Briggs as a witness. Because the untimely disclosure lacks a "good cause" basis, Mrs. Brigg's anticipated testimony (as outlined above) is irrelevant to the remaining issue in this case, and Plaintiff's untimely disclosure of this

See Court's Order dated July 28, 2005.
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witness is unduly prejudicial to the Defendants, Mrs. Briggs must be precluded from testifying at trial. 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.2 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."3 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."4 Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.

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975 F.2d 604, 609 (1992). 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).
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Thus, if a party was not diligent in complying with the Court's deadlines, the inquiry should end.5 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. 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 witnesses be allowed to testify at trial. Allowing Plaintiff to now have additional time to locate and disclose witnesses, 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 Mrs. Briggs must be barred as a Plaintiff's witness in his case. Moreover, notably absent from Plaintiff's disclosure of Barbara Briggs is any explanation for her untimely disclosure as a witness. Although Plaintiff states that Mrs. Briggs is a "newly discovered" witness, he fails to articulate why she is "newly discovered," why he was unable to diligently locate Mrs. Briggs during the four years this litigation has been pending or what steps he took to locate Mrs. Briggs prior to the discovery deadline. Put simply, Plaintiff fails to provide any "good cause" basis for not disclosing Mrs. Briggs by the court ordered discovery deadline. Accordingly, Plaintiff's Motion must be denied and Mrs. Briggs must be precluded from testifying at trial. B. Mrs. Brigg's Testimony 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.
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Johnson, 975 at 609
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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 by Mrs. Briggs actually supports the Defendants' position that La Paz County does not have the authority to terminate electrical service, and thus cannot be liable for the alleged deprivation of Plaintiff's constitutional rights. Regardless, Mrs. Brigg's anticipated testimony about APS terminating electrical power to their Motel without notice due to an immediate hazard and the steps the Motel had to go through before APS would restore their power, is irrelevant to whether Plaintiff's rights were allegedly violated. Further, introduction of Mrs. Brigg's unrelated contact with APS or La Paz County would only confuse and mislead the jury regarding liability in this case. Because this unrelated contact is irrelevant to the underlying liability issues raised in this case, Mrs. Brigg's must be precluded from testifying at trial. C. Any Probative Value of Mrs. Brigg's Testimony 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

17 Plaintiff will attempt to introduce evidence of Mrs. Brigg's contact with APS and La Paz 18 County to corroborate their allegation that there is a "conspiracy" among these agencies (a 19 claim that has been dismissed by this Court). If the jury hears evidence that residents in 20 the same area have had their electrical service terminated, albeit in situations wholly 21 unrelated to the facts presented in this case, there is a strong possibility the jurors will 22 erroneously view this action as evidence of wrongdoing by La Paz County, rather than 23 deciding this case on its merits. 24 25 26
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Because introduction of Mrs. Brigg's contact with either APS or La Paz County 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 Motion Requesting Court's Permission to Disclose Newly Discovered Witness and Information: Barbara Briggs. 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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