Free Motion for Leave to File - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected] [email protected] Attorneys for Defendants La Paz County, La Paz County Department of Community Development, La Paz County Sheriff's Office, Jay Howe, James Martin, Brad Weekley, Jerry Palmer, Penny Dalhberg, Guy Gorman, Dave Boatwright, Joe Deschaine, Curt Bagby, Joe Esqorsa, Pete Heere, and Jeff Bohlen UNITED STATES DISTRICT COURT

10 DISTRICT OF ARIZONA 11 12 13 v. 14 LA PAZ COUNTY, et al., 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright, through counsel, submit this Motion for Leave to File a Supplemental Motion for Summary Judgment. Defendants filed their Motion for Summary Judgment on December 30, 2005. On April 27, 2006, the Court entered an Order dismissing all but one of Plaintiff's claims against the Defendants. Accordingly, only Defendants Brad Weekley, Penny Dahlberg, Guy Gorman and Dave Boatwright remain. In addition, the sole remaining issues against these Defendants, sued in their official capacities, is whether JAMES W. FIELD and SUSAN F. FIELD, husband and wife, Case No. CV03-2214 PHX-SRB

Plaintiffs, LA PAZ CO UNTY DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT

Case 2:03-cv-02214-SRB

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Filed 05/02/2006

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these Defendants "believed that the conditions on the Property posed an immediate threat to the public." 1 Defendants have disclosed APS Defendants Wilson and Doug McDonald to testify about the hazardous conditions on Plaintiff's property, their independent evaluation of the hazardous conditions and their determination that the conditions posed an immediate threat to public safety. For example, Mr. McDonald has been disclosed by La Paz County to testify "regarding the circumstances surrounding the disconnection of Plaintiffs' service without notice, including his contact with any La Paz County employee. Mr. McDonald will also testify that APS is obligated to abide by the Commission's regulations and determine whether a sufficient basis exists pursuant to the regulation to terminate a customer's electrical service without notice. Mr. McDonald will testify that in this case, he and co-defendant D.L. Wilson evaluated and observed the documented information they had regarding Plaintiff's electrical facilities and determined that unsafe and hazardous conditions existed on the customer's side of the meter which warranted disconnection without notice." 2 Mr. McDonald will be submitting an Affidavit detailing the conditions on Plaintiff's property and the immediate threat the conditions posed to the public. In addition, Defendants Gorman, Weekley, Dahlberg and Boatwright will submit Affidavits outlining their inspection of Plaintiff's property and the basis of their request to APS for the termination of electrical service due to numerous and immediate safety risks to the public. Based on the evidence provided by the Defendants (including reports and photographs), there will subsequently be no issue of fact as to whether the

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See page 24 of the Court's Order.

See La Paz County Defendants' First Supplemental Disclosure Statement, attached hereto as Exhibit 1. 2

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Plaintiff's property contained electrical code violations that presented an immediate threat to public safety. Because the undisputed evidence (as will be supported by the abovereference Affidavits), the conditions on Plaintiff's property posed an immediate threat to public safety. Accordingly, the facts of this case fall in line with Patel v. Midland Memorial Hospital and Medical Center, 298 F.3d 333, 339-40 (5 th Cir. 2002) (en banc) and Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Res. Workers v. McElroy, 367 U.S. 886, 895 and 930 (1961). Finally, as outlined by the Court in footnote number 11 of the Court's Order, Defendants do not have the authority to terminate Plaintiff's electrical service. Instead, this authority rests with public service corporations. Defendants will supplement their Motion for Summary Judgment with the Arizona Administrative Code provisions verifying this legal argument. Based on the reasons outlined above, Defendants respectfully request that their Motion for Leave to File a Supplemental Motion for Summary Judgment be granted.

DATED this 2nd day of May, 2006. J ONES, S KELTON & H OCHULI, P.L.C. /s/Jennifer L. Holsman By________________________________ John T. Masterson Jennifer L. Holsman 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012

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ORIGINAL/ONE COPY of the foregoing filed this 2nd day of May, 2006 with the Clerk of the United States District Court for the District of Arizona. COPY of the foregoing mailed even date to:

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1622939_1

James W. Field and Susan F. Field Post Office Box 248 Salome, Arizona 85348 Plaintiffs Pro Per David F. Gaona, Esq. Nicole Cantelme, Esq. Gaona Law Firm Suite 720 3101 North Central Avenue Phoenix, AZ 85012 Attorney for Co-Defendants

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Case 2:03-cv-02214-SRB