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 TO INCLUDE ENTIRE DOCUMENT "UNIFORM CODE ABATEMENT DANGEROUS BUILDINGS" CV 03-2214-PHX SRB

Defendants Weekley and Gorman, through counsel, submit their Response to Plaintiff's Motion to Include Entire Document "Uniform Code Abatement Dangerous Buildings" Pursuant to FED. R. CIV. P. 26(e)(1).1 Plaintiff's Motion must be denied because: (1) Plaintiff failed to set forth a "good cause" basis for untimely disclosing Section 401 of the Uniform Code for the Abatement of Dangerous Buildings; (2) Section
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Plaintiff attached a complete copy of the Uniform Code for the Abatement of Dangerous Buildings, Section 1 through 9. Plaintiff also attached a newspaper article titled, "Supervisors Approve Development of Subdivision", as pages 13 through 15 of the exhibits attached to the Motion. Because this newspaper article was attached to another Motion filed by Plaintiff, and appears unrelated to the issues raised in this Motion, Defendants will address the untimely and prejudicial disclosure of the newspaper article in a separate Response.

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401 of the Uniform Code for the Abatement of Dangerous Buildings is irrelevant to the sole issue remaining in this case and was not relied upon in evaluating Plaintiff's property; 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. 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 Section 401 of the Uniform Code for the Abatement of Dangerous Buildings.2 Section 401 relates to "Notices and Orders of Building Official." Defendants previously listed Section 201 (Enforcement) as an Exhibit in their Joint Pretrial Statement. Section 301 (Definitions) outlines the various

"dangerous" conditions on Plaintiff's property. Defendants have never cited to Section 401 of the Uniform Code in any of the Abatement documents provided to the Plaintiff. Plaintiff had "notice" of the relevancy of Sections 201 and 301 of the Uniform Code for the Abatement of Dangerous Buildings since 2002. In a Notice for Order of Abatement, dated November 5, 2002, Plaintiff was advised that his property was "dangerous" pursuant to Section 301 of the Uniform Code for the Abatement of Dangerous Buildings. In the La Paz County Compliance Agreement, drafted to assist Plaintiff in curing any deficiencies on the property, Plaintiff was again pointed to Section 301 of the Uniform Code for the Abatement of Dangerous Buildings.

Plaintiff's Exhibit to the Motion, lists Sections 1, 2, 3, 4, 5, 6, 7, 8 and 9. Because Plaintiff is not seeking introduction of any of the sections, other than 401, Defendants do not address the irrelevancy of the other sections in this motion.
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Plaintiff subsequently 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, 2005.3 During the discovery process, Plaintiff failed to disclose the Uniform Code for the Abatement of Dangerous Building. Plaintiff similarly did not list the Code as an Exhibit in the Joint Pretrial Statement. On December 28, 2006, Plaintiff filed this Motion seeking introduction of Section 401 of the Uniform Code for the Abatement of Dangerous Buildings. Plaintiff alleges that "Section 401 is vital as it proves that La Paz County failed to follow proper procedure in this matter, which also goes to show that La Paz County Defendants knowingly and willfully caused irreparable harm to 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 and use Section 401 of the Uniform Code for the Abatement of Dangerous Buildings as a trial exhibit. Because the untimely disclosure lacks a "good cause" basis, Section 401 of the Code is irrelevant to the remaining issue in this case, and Plaintiff's untimely disclosure of this exhibit is unduly prejudicial to the Defendants, Section 401 must be precluded as a trial exhibit in this case. 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 See Court's Order dated July 28, 2005.
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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.4 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."5 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."6 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.7 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 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
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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). 7 Johnson, 975 at 609
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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 Section 401 must therefore be precluded as a trial exhibit in his case. Moreover, notably absent from Plaintiff's disclosure of Section 401 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 Section 401 must be precluded at trial. B. Section 401 of the Code 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. Section 401 relates to "Notices and Orders of Building Officials." Here, there is no issue that Plaintiff complied with Section 401 as Plaintiff had admitted that he received a "Notice and Order of Abatement" as prepared and posted by La Paz County. Thus, there is no question about whether Plaintiff complied with the "Notice" Requirements of the Uniform Code for the Abatement of Dangerous Buildings. In addition, Plaintiff will likely argue that La Paz County failed to give him "Notice" under Section 401 so that he could repair any electrical conditions on the property. As previously articulated, La Paz County did not terminate Plaintiff's electrical
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service. Instead, APS relied on the Arizona Corporation Commission ("ACC") R14-2-211 to terminate Plaintiff's electrical service without notice based on the dangerous conditions on Plaintiff's property. Thus, Section 401 of the Uniform Code for the Abatement of Dangerous Buildings will not make it more or less probable that Plaintiff's constitutional rights were violated based on the termination of his electrical service. Put simply, La Paz County complied with the Notice requirements of Section 401 and this exhibit is therefore irrelevant to the sole remaining issue in this case. C. Any Probative Value of Section 401 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 Section 401 to corroborate their allegation that La Paz County failed to give Plaintiff "Notice" before terminating his electrical service. As outlined above, La Paz County did give "Notice" under Section 401. In addition, La Paz County did not terminate Plaintiff's electrical service. Instead, APS terminated the

service under the "No Notice" section of R14-2-211. 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 Section 401 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 Motion To Include Entire Document "Uniform Code Abatement Dangerous Buildings" Pursuant to FED. R. CIV. P. 26(e)(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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