Free Reply to 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] Attorneys 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' WEEKLEY AND GORMAN'S REPLY IN SUPPORT OF THEIR MOTION FOR JUDGMENT AS A MATTER OF LAW CV 03-2214-PHX SRB

Pursuant to FED. R. CIV. P. 50(a)(1), Defendants Brad Weekley and Guy Gorman1 ("La Paz County Defendants"), through counsel, move for judgment as a matter of law on all claims brought by Plaintiff James Field because: (1) Plaintiff failed to present any evidence during the trial of this matter that the electrical conditions on his property did not present a health and safety hazard to the public on October 30, 2002; and (2) Plaintiff failed to establish that La Paz County had any authority to terminate the

All other La Paz County Defendants have been dismissed from this case per Court Order. APS, Doug McDonald and Doug Wilson were also dismissed from this case per Court Order.
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electrical service to his property, that they "ordered" or "compelled" Defendant Arizona Public Service ("APS") to terminate the electrical service, or that they terminated the electrical service themselves. This Motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. LEGAL ANALYSIS Plaintiff's Objection to La Paz Defendants' Motion for Judgment as a Matter

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of Law fails to establish a legal or factual basis for denying Defendants' Motion. In fact, Plaintiff has failed to present any evidence that Defendants are not entitled to Judgment because he relies on cases that are not on point, exhibits that were never admitted into evidence during the trial, and witness testimony (particularly from himself) that was never heard by the jury during the trial. Because Plaintiff cannot rely on "after the fact" evidence, Defendants are entitled to judgment as a matter of law. A. No Evidence There Were Not Health and Safety Hazards on Plaintiff's Property. "Plaintiff has demonstrated La Paz Defendants were not actually concerned with health and safety issues in taking action 13 days after discovery of conditions alleged to amount to an immediate danger to the public."2 Despite Plaintiff's allegations, there has been no "demonstration" that La Paz County was not concerned with health and safety

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See page 2 of Plaintiff's Response.

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hazards on Plaintiff's property. In fact, the only evidence presented in this case by qualified expert witnesses, along with the exhibits entered into evidence, establish that there were indeed significant health and safety hazards on Plaintiff's property. This is the only evidence that the jury heard in this case.3 Accordingly, Plaintiff will be unable to establish a prima facie case that there were not health and safety hazards on Plaintiff's property, thus negating any due process requirements by these Defendants. Plaintiff similarly relies on exhibits that were never admitted into evidence

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Plaintiff has once again misstated the facts. As established by the evidence, the inspection of Plaintiff's property occurred on October 30, 2002. Guy Gorman then contacted APS regarding the dangerous conditions on Plaintiff's property on November 4 or 5, 2002. On November 5, 2002, the Notice and Order for Abatement was prepared and subsequently sent to APS for their review on November 6, 2002. Thus, only 3 business days passed before La Paz County made contact with APS. After that, La Paz County was out of the picture related to any due process owed to Plaintiff because these Defendants did not have the authority to terminate Plaintiff's electrical service as established by the evidence.
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in his response. As the Court is aware, judgment as a matter of law is appropriate where a Plaintiff has failed to establish by the evidence (i.e. exhibits admitted into evidence or sworn testimony) a prima facie case. In this case, Plaintiff's submission of Exhibit 2 attached to his Response and Exhibit 5 attached to his "Addendum" are inappropriate as the documents were not admitted into evidence. As noted during this trial, the jury heard only qualified expert testimony from Guy Gorman (La Paz County Building Inspector), D.L. Wilson (APS Representative) and Doug McDonald (APS Representative) that there were dangerous conditions on Plaintiff's property that posed an immediate threat to the health and safety of the community. In fact, this is the only testimony the jury has heard. Plaintiff failed to elicit, and cannot

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elicit, any testimony, from a qualified witness, that the conditions on Plaintiff's property were not an immediate health and safety hazard on October 30, 2002. In order to prevail on his due process claim, Plaintiff had to prove that La Paz County representatives did not find immediate health and safety hazards on his property on October 30, 2002. Here, because Plaintiff failed to present any evidence that there were not immediate health and safety hazards that posed a threat (immediate or otherwise) to the community, he has failed to meet his burden of proof on the due process

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claim against these Defendants. Accordingly, the Defendants are entitled to judgment as a matter of law on Plaintiff's due process claim. B. La Paz County Does Not Have Authority to Terminate Electrical Service. As outlined in Defendants' Motion, the Arizona Constitution vests power in the Arizona Corporation Commission ("ACC") to regulate public service corporations, like APS. See Ariz. Const. Art. 15, § 3; A.R.S. § 40-202(B) (authorizing the ACC to "[e]stablish reasonable requirements for ... regulating electricity suppliers that are public service corporations.") The ACC also has rules concerning circumstances where public service corporations can terminate electrical power. See Ariz. Admin. Code, Art. 2, R142-201, et. seq. As a result of these rules, the power to terminate electrical service resides with the public service corporation, APS. During the trial of this matter, the jury heard testimony from Guy Gorman (La Paz County Building Inspector), Brad Weekley (former Director of the La Paz County

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Department of Community Development), D.L. Wilson (APS Representative) and Doug McDonald (APS Representative), that La Paz County did not have the authority to terminate electrical service to Plaintiff's property. In fact, each of these witnesses testified that only APS has the authority to terminate service as outlined under the Arizona Administrative Code. Plaintiff failed to present any evidence, as confirmed by Plaintiff's failure to address this issue in his Response, that these Defendants had any authority to terminate his electrical service.

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Once again, Plaintiff's claim relates to the APS Defendants and not Brad Weekley or Guy Gorman. As the Defendants have made clear, neither Brad Weekley nor Guy Gorman had the authority to terminate Plaintiff's electrical service. Thus, there is no affirmative link in allegedly failing to provide due process and the deprivation of a property interest by these Defendants.
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Plaintiff continues to rely on state law, including Arizona Corporation Commission ("ACC") rules and regulations, to support his claim that he should have been given "notice" before APS terminated his power.4 The Court has previously determined that the ACC rules and regulations apply to APS and not to these La Paz County employees. Accordingly, Plaintiff's reliance on these rules and regulations is misplaced. Furthermore, Plaintiff repeatedly relies, inappropriately, on the R14-2-211(C), which outlines the steps APS must take before terminating service with notice. As the Court is aware, APS did not provide notice to Plaintiff before terminating electrical service because of significant health and safety hazards on the property. Again, neither Guy Gorman nor Brad Weekley terminated Plaintiff's electrical service and cannot be liable under the ACC rules and regulations Plaintiff relies on. Plaintiff also relies on case law, which actually supports Defendants'
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position. Plaintiff quotes, Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 159 (6th Cir. 1973), "to comply with the due process a municipal entity must provide notice sufficiently in advance to permit its customer adequate time to prepare for, or repair unsafe conditions before termination of utility service." Again, as established by the only evidence

presented at trial, these Defendants did not terminate Plaintiff's electrical service. Thus, there can be no due process violation based on these Defendants' actions. Finally, Plaintiff failed to establish during the trial or in his Response, that

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these Defendants had the authority to terminate his electrical service.

Specifically,

Plaintiff failed to establish an affirmative link between the alleged due process rights owed to him and a deprivation of those rights by these Defendants. As the Court is aware, only APS had the authority to terminate electrical service. Each and every La Paz County and APS Defendant testified to this fact. Plaintiff did not elicit testimony or provide contradictory testimony on this point. Accordingly, Plaintiff is unable to establish the affirmative link necessary for his alleged due process violation. Moreover, the Court granted the Motion for Directed Verdict filed by the APS Defendants on June 15, 2006. In doing so, the Court explicitly found that there was no state action by the APS Defendants, and that APS was not ordered or compelled by La Paz County to terminate Plaintiff's electrical service. Instead, the Court found that APS conducted an independent investigation before they independently acted to terminate the

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Because the undisputed evidence establishes that La Paz County cannot terminate the electrical service to Plaintiff's property, Defendants cannot be liable for violating Plaintiff's rights to due process before "terminating his electrical service", because they did not have the authority to do so. Accordingly, these Defendants are entitled to judgment as a matter of law. C. Plaintiff Concedes Defendants' Arguments. Arizona District Court, Local Rule 7.2(i), provides that "if the opposing

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party does not serve and file a required answering memoranda . . . such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily." In this case, Plaintiff's Response fails to address any of the case law cited by Defendants supporting its legal position. Plaintiff also fails to establish, by the evidence, that there was a qualified expert that gave testimony during the trial that there were not health and safety hazards on Plaintiff's property. Plaintiff also failed to establish, by the evidence, that these Defendants had authority to terminate his electrical service, one of the elements he must prove to establish his prima facie case. Accordingly, this Court should treat Plaintiff's failure to respond to the above-identified claims from Defendants' Motion for Judgment as a Matter of Law as consent to the granting of the motion thereby dismissing this case in its entirety.

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III.

CONCLUSION The La Paz County Defendants are entitled to judgment as a matter of law

because: (1) Plaintiff did not present any evidence that the electrical conditions on his property did not present a health and safety hazard that posed an immediate threat to the public; and (2) Plaintiff failed to establish that La Paz County had any authority to terminate the electrical service to his property, that they "ordered" Defendant APS to terminate the electrical service, or that they terminated the electrical service themselves.

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DATED this 3rd day of July, 2006. 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 and Guy Gorman COPY of the foregoing hand-delivered this even date 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 s/Colleen Webb

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