Free Motion in Limine - District Court of Arizona - Arizona

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David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants APS, Doug McDonald and Donald Wilson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JAMES W. FIELD and SUSAN F. FIELD, husband and wife, Plaintiffs, vs. LA PAZ COUNTY, et al., Defendants. Defendants Arizona Public Service Company, Doug McDonald and Donald Wilson ("APS Defendants") respectfully request this Court issue its pretrial Order in limine precluding the Plaintiff from introducing before the jury: (1) any evidence of Plaintiff's damages, where such alleged damages were not caused or proximately caused by the lack of prior notice Plaintiff is alleging he was constitutionally entitled to and did not receive; (2) any evidence of Plaintiff's damages incurred as a result of his failure to mitigate; and (3) any evidence relating to damages not disclosed by Plaintiff. This Motion is more fully supported by the following Memorandum of Points and Authorities. No. CIV03-02214 PHX SRB APS DEFENDANTS' MOTION IN LIMINE RE: DAMAGES

Case 2:03-cv-02214-SRB

Document 179

Filed 05/22/2006

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DATED this 22nd day of May, 2006. GAONA LAW FIRM s/ Nicole Seder Cantelme David F. Gaona Nicole Seder Cantelme Attorneys for APS, Doug McDonald and Donald Wilson

MEMORANDUM OF POINTS AND AUTHORITIES In his Amended Complaint, Plaintiff has generally alleged that he is entitled to "damages," but Plaintiff has not provided any specific support for what damages he is claiming in this case.1 Plaintiff also pleads in his Amended Complaint that he is seeking "permanent injunctive relief" ­ although he does not identify what type of injunction he is seeking and who he is seeking the injunction against. Amended Complaint at ¶ 109. Plaintiff also pleads in his Amended Complaint a request for this Court to "order Arizona Public Service reestablish Electrical Service to Property following Requirements including paying all monetary costs associated with reestablishment at no cost to Plaintiffs." Id. I. Failure to Establish Causation To obtain any relief in this case against the APS Defendants, Plaintiff must first prove that (1) the termination of his electrical service was state action; (2) that a constitutional deprivation occurred; and (3) what amount (if any) of pre-termination notice Plaintiff is entitled to under the law. Assuming that Plaintiff can meet his
Plaintiff did plead punitive damages, but this Court has already ruled that Plaintiff is not entitled to punitive damages in this case. See Order dated April 27, 2006 at p.27. 2 Case 2:03-cv-02214-SRB Document 179 Filed 05/22/2006 Page 2 of 6
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burden on these issues, Plaintiff's only cognizable damages would be those damages, if any, caused or proximately caused by the alleged lack of notice. However, even if Plaintiff had received this alleged "entitled" pre-termination notice, Plaintiff would still have been required to bring his property into compliance with applicable electrical codes and to pay any amounts due and owing on his account to maintain service and to avoid termination of his electrical service. The various electrical code violations

apparently still existing on Plaintiff's property, which continue to act as a bar to him reestablishing his electrical service, were not caused by any lack of pre-termination notice. These code violations existed prior to the termination of Plaintiff's electrical service, and were not caused or proximately caused by any lack of notice. Plaintiff is not entitled to any damages he has incurred as a result of his refusal to bring his property into compliance with applicable codes so that his electrical service can be restored. 2 With regard to Plaintiff's apparent request for relief from having to pay any monies due and owing on his APS account to reestablish service (see Amended Complaint at ¶ 109), these amounts already existed prior to termination of Plaintiff's electrical service and were not caused by any alleged lack of pre-termination notice.3 Plaintiff's only arguable cognizable damage in this regard would be limited to

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To illustrate, take a case where no pre-termination notice was provided to a customer for nonpayment, and service was terminated. Pre-termination notice or not, the customer would not be entitled to damages incurred as a result of the customer's unreasonable refusal to pay the undisputed amounts due and owing. See, e.g., Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 11 (1978) ("the customer's right to continued [electrical] service is conditioned upon payment of the charges properly due"). In addition, this request by Plaintiff is really a request for sanctions against APS, and this Court has previously ruled that punitive damages are not available. See footnote 1, infra. 3 Case 2:03-cv-02214-SRB Document 179 Filed 05/22/2006 Page 3 of 6

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"disconnect or reconnect fees" associated with terminating and reestablishing service (assuming that Plaintiff would have made the necessary repairs within the notice period and prevented termination). Accordingly, Plaintiff should be precluded from either testifying or presenting any evidence of damages not caused or proximately caused by the lack of pretermination notice Plaintiff alleges he is entitled to. II. Failure to Mitigate As already acknowledged by this Court, Plaintiff "inexplicably" refused to engage in what could be termed "post-deprivation" remedies, which would have allowed him to immediately reestablish his electric service, and to bring his property into compliance with the various code violations by a later date. See Order dated April 27, 2006 at p.6. Plaintiff's refusal constitutes a failure to mitigate his damages and supports that Plaintiff's cognizable damages in this case are significantly limited. Again, assuming that Plaintiff is even entitled to any pre-termination notice, because of his duty to mitigate damages and his failure to do so, Plaintiff is, at minimum, not entitled to any alleged damages occurring after "post-deprivation" remedies were made available, and he "inexplicably" failed to invoke that opportunity. III. Failure to Disclose Plaintiff has disclosed very little with regard to his claim for damages, and he has not provided a single piece of evidence establishing or supporting actual damages he has incurred. Plaintiff has provided an initial disclosure statement in this case, and is clearly aware of his duty to disclose. The APS Defendants respectfully request that

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this Court preclude any documentary or testimonial evidence establishing damages which has not previously been disclosed. IV. Conclusion Based on the foregoing, the APS Defendants respectfully request that this Court preclude (1) any evidence of damages not caused or proximately caused by a lack of pre-termination notice (assuming Plaintiff can prove he is entitled to any notice); (2) any evidence of damages incurred as a result of Plaintiff's failure to mitigate his damages; and (3) any evidence establishing damages not previously disclosed by Plaintiff. DATED this 22nd day of May, 2006. GAONA LAW FIRM

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/s/ Nicole Seder Cantelme David F. Gaona Nicole Seder Cantelme Attorneys for APS, Doug McDonald and Donald Wilson

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CERTIFICATE OF SERVICE I hereby certify that on May 22, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John Masterson, Esq. [email protected] and Jennifer Holsman, Esq. [email protected] Attorneys for La Paz County Defendants I further certify that on May 22, 2006, I mailed a copy of the foregoing document to Plaintiff pro per: James W. Field Post Office Box 248 Salome, Arizona 85348

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/s/ Nicole Seder Cantelme

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