Free Reply to Response to Motion - District Court of Arizona - Arizona

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J. Mark Oaten; AZ Bar No. 017018 [email protected] J. Greg Coulter; AZ Bar No. 016890 [email protected] Brandon A. Newton; AZ Bar No. 021565 [email protected] LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Abel Ruiz Diaz, Ubaldo Moreno, Picdad H. Renteria, Alejandro D. Mancilla, Plaintiffs,
v.

Case No. CV03-2127 PHX-MHM DEFENDANTS' REPLY IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE

Eagle Produce Limited Partnership, Phoenix Agro Invest, Inc., SAM Management, Inc., Defendants. Plaintiffs have misconstrued the evidentiary standard at the summary judgment phase in an attempt to convince the Court to consider inadmissible assertions. The Court can only consider admissible evidence in ruling on Defendants' Motion for Summary Judgment. For the reasons stated in Defendants' Motion to Strike and below, certain paragraphs contained in Plaintiffs' Statement of Genuine Issues in Opposition to Motion for Summary Judgment ("SOGI") must be stricken.

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MEMORANDUM OF POINTS AND AUTHORITIES EVIDENTIARY STANDARD A court can only consider admissible evidence in ruling on a motion for summary judgment. On v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002); Beyene v. Coleman Sec. Sews., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988); see also Fed. R. Evid. 101 (Federal Rules of Evidence apply in all proceedings before the United States courts); Lavespere v. Niagra Machine & Tool Works, Inc., 910 F.2d 167, 176 (5th Cir. 1990) (in determining whether to consider evidence submitted in opposition to a summary judgment motion, the Court should use "the same rules that govern the admissibility of evidence at trial."). Plaintiffs* reliance on Federal Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478,485 (9th Cir, 1991), and Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001), is misplaced. Both of those cases cite to Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) for the proposition that a party does not have to present evidence in a form admissible at trial to overcome summary judgment. Celotex states that a proper summary judgment motion can be opposed by any of the kinds of evidentiary materials listed in Fed. R. Civ. P. 56(c), except the mere pleadings themselves. Id. Specifically, affidavits, interrogatories and pleadings, which are normally not admissible at trial, can be used to establish facts to oppose summary judgment. Neither Block nor Federal Deposit allow a parly to submit inaccurate facts, unauthenticated documents, or hearsay to oppose a motion for summary judgment because those types of statements and documents are not admissible evidence.

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THE FOLLOWING PARAGRAPHS SHOULD BE STRICKEN FROM THE RECORD.
Paragraphs 1, 3, 4, 5, 11, 12,' 27, 67 should be stricken for the reasons stated in

Defendants* Motion to Strike. Plaintiffs have attempted to provide additional support for these paragraphs in their Response to Defendants' Motion to Strike ("Response"), which is improper. The time for Plaintiffs to cite all relevant evidence in opposition to Defendants'
Plaintiffs agreed that Paragraph 12 should be modified to reflect that no workers on Crew 94 were laid off while Daflem was the supervisor of Crew 94 for the sake of clarity. That modification should be made at a minimum.
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Motion for Summary Judgment has passed. The Court should not consider any new citations to the record that appear in Plaintiffs' Response. Because no admissible evidence supports Paragraphs 1,3,4,5, 12,27 or 67, they should be stricken. Paragraphs 3, 5, 6, 13, and 40 draw conclusions that are not supported by witness testimony. A reading of the testimony cited by Plaintiffs does not support the "facts" described by Plaintiffs. These paragraphs should be stricken, or, at a minimum, modified to reflect the actual substance of the witness testimony. Similarly, the letter cited to in Paragraph 36 speaks for itself. Paragraph 36 should either be stricken or modified to accurately represent the contents of the letter. Paragraph 10 states Chester Daffern's belief that he was terminated due to his age. While his conclusion is based upon his personal belief, it remains inadmissible. "Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter rather, it requires [] specific concrete facts establishing the existence of the truth of the matter asserted." Hadley v. County ofDu Page, 715 F.2d 1238, 1243 (7th Cir. 1983), cert, denied, 465 U.S. 1006 (1984). In the Ninth Circuit, regardless of the source of evidence, proper foundation must be laid. Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) ("A plaintiffs belief... without evidence supporting that belief, is no more than speculation or unfounded accusation ... [Plaintiff] failed to show personal knowledge. It is not enough for a witness to tell all she knows; she must know all she tells."); Fed. R. Evid. 602 (prohibiting a witness from testifying on a matter "unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter"). Plaintiffs cite to United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999), for the proposition that Daffern's belief is admissible. Shumway, however, supports Defendants' position that Daffern's belief is inadmissible. See id. ("If the affidavit stated only

conclusions, and not 'such facts as would be admissible in evidence' then it would be too conclusory to be cognizable ..."). Daffem's testimony only states his conclusory belief that

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he was terminated due to his age. It does not state facts providing the basis for his belief or lay foundation for his belief. Testimony based on suppositions, speculation and conjecture is not competent summary judgment evidence, and it does not create a material issue of fact. Accordingly, Paragraph 10 must be stricken. Paragraph 58 must also be stricken because it does not state specific facts. Renteria's affidavit states an unsupported conclusion. To be admissible, Renteria must state facts based on personal knowledge that support his belief that other employees cashed checks on Eagle Produce's property, but were not disciplined. Because he has failed to do so, Paragraph 58 must be stricken. Paragraph 59 is based upon Renteria's affidavit, which completely changes the testimony given at his deposition. Renteria states in his affidavit that he became confiised when he gave the following testimony: Q: So it's after you did your two months as a helper that Gilberto told you

on the drive home something to the effect that he didn't like older workers - and he was going to get rid of them. A: He still hadn't been put on. What he told me is, "If Chester puts me on

as a helper, I'm going to fire everybody I don't like." Q: A: Q: Did he say anything about their age, or just say "people I don't like." About people that he didn't like. Not about age.

A:
Q:

No.
Did he ever mention anything about the age of the workers, or did he

just tell you he was going to fire everyone he didn't like. A: Yes. He didn't mention the age or anything. He said he was just going

to get rid of the people he didn't like. Q: I want to be clear. Gilberto never told you that he was going to get rid

of the people who were older.

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A:

No. No.

Q: A:

He was going to get rid of the people he didn't like. Exactly.

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Deposition of Piedad Renteria, at 36:21-37:22, attached hereto as Exhibit A. A review of the entire relevant testimony shows Renteria was not confused during questioning, but instead answered unequivocally three times that Gilberto Vigueria did not mention age. Plaintiffs cite to Miller v. A.H. Robins Co., 766 F.2d 1102 (7th Cir. 1985), for the proposition that Renteria's contradictory affidavit should be considered in opposition to Defendants' Motion for Summary Judgment. In Miller, the court held that plaintiffs

affidavit was a sham and could not create an issue of fact to prevent summary judgment. Id. at 1104-1105. Part of the court's reasoning was that Miller read her deposition testimony, made several changes to correct inaccuracies and a possible misinterpretation, and signed the deposition. Id. at 1005. The court noted that the plaintiff did not make any corrections to the deposition testimony she sought to change with her affidavit. Id. Like Miller, Renteria read his deposition, made changes that altered the complete meaning of his deposition testimony under the pretense of confusion, and made no changes to his testimony concerning his conversation with Gilberto Vigueria. Now, after Defendants filed their motion for summary judgment, Renteria seeks to make additional, substantive changes to his deposition by way of an affidavit. Unquestionably, that affidavit is a sham affidavit and cannot be considered. See Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir. 1985) (the general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony). Accordingly, Paragraph 59 should be stricken. Paragraph 43 is inadmissible hearsay. In order to be considered by the Court, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. As the Ninth Circuit explained in United States v. Dibble, "[a] writing is not

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authenticated simply by attaching it to an affidavit

The foundation is laid for receiving a

document in evidence by the testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document and, where appropriate, its delivery." Dibble, 429 F.2d 598, 602 (9th Cir. 1970). Here, Exhibit P, the support for Paragraph 43, has not been authenticated. Plaintiffs cite to Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), in order to circumvent the requirement of authenticating a document. In Fraser, the court considered whether the contents of plaintiffs diary was admissible into evidence. 342 F.3d at 1036-37. The court stated that because the contents of the diary are mere recitations of events within Fraser's personal knowledge, Fed. R. Evid. 602, 612, 803(5) make the contents admissible. The situation presented to this Court is quite different because the writing sought to be admitted into evidence has not been authenticated by its author. In fact, who actually authored the document is unknown. The Ninth Circuit has repeatedly held that

unauthenticated documents cannot be considered in a motion for summary judgment. See Cristobal v, Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene, 854 F.2d at 1182; Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone Tankslrip Corp., 539 F.2d 684, 686 (9th Cir. 1976). Plaintiffs also claim that Exhibit P is an admission by Eagle Produce. A written document with an unknown author purporting to summarize a telephone conversation with another party is not an admission by the other party. Accordingly, Paragraph 43 is based on inadmissible evidence and must be stricken. Paragraphs 38, 44, 54, 55 and 65, which rely solely on Exhibit N to Plaintiffs' SOGI, should be stricken because the summary relied upon is inaccurate and inadmissible hearsay. In their opposition to Defendants* Motion to Strike, Plaintiffs state that Defendants provided Exhibit N to summarize documents requested by Plaintiffs rather than disclosing the original business records. This statement is inaccurate. During discovery, Defendants

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provided a chart, EP00918,2 which lists by week the number of hours worked by Crew 94 from 1999 to 2001. Plaintiffs were told that Redmond utilized the payroll records to

construct EP00918. On September 17, 2004 and October 5, 2004, Plaintiffs reviewed the 1999,2000 and 2001 payroll records for Crew 94 at Eagle Produce's Scottsdale office.3 Due to the voluminous nature of the payroll records, Plaintiffs were offered copies of those records at their own expense, but declined. Exhibit N was provided to Plaintiffs because they requested during discovery all documents given to the EEOC during its investigation. Defendants never stated that Exhibit N was being provided as a summary of the payroll records. Plaintiffs had copies or inspected the payroll records for Crew 94 months before they received Exhibit N. In February 2002, Plaintiffs were informed that information on Exhibit N was incorrect and that payroll records and employee files should be used as they contain accurate information. In February, Plaintiffs were provided an additional 22 employee files. After February 2002, Plaintiffs never requested any additional employee files. Based on the payroll records and employee files in Plaintiffs' possession, they could have determined that Exhibit N is inaccurate. For example, Plaintiffs were informed that the employee files of Arturo Osuma and Clint White demonstrated their correct hire dates while Exhibit N was incorrect. Plaintiffs have never argued that Exhibit N is accurate, but instead elected to ignore the errors in Exhibit N and proceeded to use its incorrect contents. Exhibit N is an inaccurate summary of information that was not prepared for this litigation and is only admissible if it complies with Fed. R. Evid. 1006. Because Exhibit N is inaccurate, it is inadmissible under Fed. R. Evid. 1006. Fed. R. Evid. 1006; see also Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1335 (10th Cir. 1996) (in order to be admissible under Rule 1006, a summary must be accurate). Because Exhibit N is not an admissible summary, those allegations based on Exhibit N cannot be considered.
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This chart is Exhibit A to John Redmond's affidavit, which is Exhibit I to Defendants' Undisputed Statement of Facts in Support of Their Motion for Summary Judgment. 1 On September 7,2004, Plaintiffs were provided copies of the payroll records of Crew 94 for 2002 and 2003.
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Plaintiffs argue that if Exhibit N is hearsay, the contents of Exhibit N arc still admissible under the principles set forth in Fraser. Fraser is again distinguishable because the inadmissible document in Fraser was a diary written by the plaintiff. Fraser, 342 F.3d at 1036-37. Accordingly, the plaintiff had first-hand knowledge of its contents, and the contents were unquestionably admissible. Here, the accuracy and admissibiHty of Exhibit N's contents are in question. Specifically, the contents of Exhibit N cannot be presented in an admissible form at trial because they are incorrect. Accordingly, Paragraphs 38, 44, 54, 55 and 65 are unsupported by admissible evidence and should be stricken from the record. RESPECTFULLY SUBMITTED this 10th day of October, 2005. s/Brandon A. Newton J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON Attorneys for Defendants I hereby certify that on October 10, 2005,1 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: Kristina Campbell George H. McKay Community Legal Services 305 South Second Avenue Phoenix, AZ 85036-1538 s/ Ruth A. Mare
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EXHIBIT A

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Diaz v. Eagle Produce
Pago 35

Pledad Rcnteria February II, 2005
Pogs 37

(ij Q: Wliy did he take you off? p] A: I don't know. p] Q: Did you ask him? M A: No. He put me back on the tractor and that Pi was it. lei Q: Who took your place at night then? PI A: Gilbeno. PI Q: Chester put Gilbeno at night? p] A: Yes. [to] Q: Who took Gilbeno's place during the day? [it] A: No, I don't know who -- who he would have put [«] on. [<3i Q: So all tliis occurred before Owen took over. Ii4j A: Yes. [iq Q: So when Owen took over, who was Owen's [is] helpers? [17] A: Chester -- I'm sorry -- Gilbert (sic) [IB] continued and Chest -- and Andres. liBj Q: Andres was during the day. poi A: Yes,Andres has always been on during the day. pi] Q: Wasn't Gilbeno on in the day for Chester? P2] A: After that they put another guy on at night 123] and Gilbeno was working during the day. P4] Q: After what? pq A: But they took Gilbeno off nights. No, after
Pago 36

[ij workers and -- and he was going to get rid of them. P) A: He still hadn't been put on. What he told me [3j is, "If Chester puts me on as a helper, I'm going to Hj fire everybody I don't like." is] Q: Did he say anything about their age, or just [6j say "people I don't like." [7] A: About people that he didn't like. IB) Q: Not about age. PI A: No. [io] Q: Did he ever mention anything about the age of im the workers, or did he just tell you he was going to [i2] fire everyone he didn't like, [is] A: Yes. He didn't mention the age or anything. t») He said he was just going to get rid of the people he [is] didn't like. [iq Q: I want to be clear. Gilbeno never told you [17] that he was going to get rid of the people who were (iq older, [is] A: No. No. poj Q: He was going to get rid of people he didn't pi] like. pzi A: Exactly. pa] Q: Okay. Were there people you knew he didn't [24] like? ps] A: That I didn't or Gilbeno didn't.
Paga 38

[il they took me off nights, they put Gilbeno on at night. Pl Q: Okay. In 2002, Chester -- who was Chester's Pi day helper. 14] A: It was Andres. Andres was the helper. pj 0:1 think I said 2002. In 2000, Andres was the [6j day helperfor Chester; right?
Pi A: Yes.

[ei Q: And for approximately two months you were the pj night helper for Chester. [io] A: At night, yes. (it) Q: Chester removed you and put Gilbeno in that [i2] position; right? Its] A: Yes. [i4] Q: Did you ever ask Gilbeno why he was put into list your position. lie] A: No. I -- I didn't say anything. I didn't ask (i7j him absolutely anything. [ie] Q: Were you not concerned that you had been [is] removed from that position and someone else took it pq over? pit A: No. I was being given a job. I was working
MI Q: Gilbeno. p] A: Well, a lot of people complained about Pl Gilbeno about this, that, or the other tiling, but I [4] never had any problems with him. p] Q: Was there anybody you didn't like. [6j A: No. Everyone talks to me. Pi Q: Who is it that Gilbeno did not like? [a] A: Well, what I realize is there was a man that [8j was also fired.What's his name. Has last name is ID] Vasquez, his first name is -- Justiniano Vasquez. ii] Q: So you do not believe that -- or let me back 12) up.You believe that Gilbeno did not like Mr.Vasquez. is] A: Yes. 14] Q: Anybody else you believe that Gilbeno did not is] like. ie] A: No, just that man. He would tell me. IT] Q: So that man he didn't like. IB] A: Gilbeno didn't, no. He didn't like. ie] Q: That was the man he was talking about he would poi fire ifhe ever got a chance to; right? {zi] MS. CAMPBELL: Objection; mischaracterizes his

[22] testimony.
P3] pq

A: Yes.
BY MH. COULTER:

ps]

Q: Anybody else that you believe Gilbeno did not

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