Free Motion to Strike - District Court of Arizona - Arizona

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J. Mark Ogden; 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, Piedad H. Renteria, Alejandro D. Mancilla, Plaintiffs, v. Eagle Produce Limited Partnership, Phoenix Agro Invest, Inc., SAM Management, Inc., Defendants.

Case No. CV03-2127 PHX-MHM DEFENDANTS' MOTION TO STRIKE

Defendants Eagle Produce Limited Partnership ("Eagle Produce"), Phoenix Agro Invest, Inc. ("Phoenix Agro") and SAM Management, Inc. ("SAM") (collectively "Defendants") move for an order striking portions of Plaintiffs' Statement of Genuine Issues In Opposition to Motion for Summary Judgment ("Plaintiffs' SOF") submitted by Plaintiffs in support of their Opposition to Defendants' Motion for Summary Judgment. The

paragraphs Defendants seek to strike contain or constitute inadmissible evidence, which the Court should not consider when deciding Defendants' Motion for Summary Judgment. This Motion is supported by the following Memorandum of Points and Authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES PLAINTIFFS MAY NOT RELY ON ALLEGED FACTS OR EVIDENCE THAT WILL BE INADMISSIBLE AT TRIAL TO OPPOSE DEFENDANTS' SUMMARY JUDGMENT MOTION. Rather than opposing Defendants' summary judgment motion with specific facts that are supported by the record and admissible at trial as Rule 56 requires, Plaintiffs rely upon speculative assumptions, inaccurate characterizations of testimony and conclusory allegations. The Court cannot consider these generalized and unsupported statements in opposition to Defendants' Motion for Summary Judgment. When a summary judgment motion is made and supported as required by Rule 56 of the Federal Rules of Civil Procedure, "the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Rule 56(e) requires Plaintiffs to set forth specific facts that will be admissible at trial by affidavit, declarations, or admissions on file to establish that there is a genuine issue for trial. 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." Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 176 (5th Cir. 1990) (citations omitted). Supporting materials designed to establish genuine issues of material fact to avoid summary judgment "must be established through one of the vehicles designed to ensure reliability and veracity ­ depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence." Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir. 1991) (court properly rejected affidavit based on information and belief rather than personal knowledge), aff'd on other grounds, 508 U.S. 49 (1993). Despite this requirement, Plaintiffs seek to utilize several pieces of inadmissible evidence in an attempt to avoid summary judgment.

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II.

THE COURT SHOULD STRIKE THE INADMISSIBLE EVIDENCE THAT PLAINTIFFS HAVE SUBMITTED FOR ITS CONSIDERATION IN THEIR STATEMENT OF FACTS. Paragraph 1 is conclusory and not supported by admissible evidence or testimony.

Plaintiffs' Complaint is not sworn testimony. Paragraph 3 misstates testimony and assumes facts not in evidence. Brandt was asked whether planting occurred year round at Eagle Produce in 2002. Brandt did not provide testimony as to whether or not all tractor operators in Crew 94 worked year round in 2002. Paragraph 3 should be stricken as unsupported. Paragraph 4 assumes facts not in evidence. There is no evidence of who owned the land where Plaintiffs worked. unsupported. Paragraph 5 assumes facts not in evidence and mischaracterizes testimony. Byrd did not provide any testimony about whether or not crops are planted throughout the year. That portion of Paragraph 5 should be stricken as unsupported. Paragraph 6 is misleading and misstates testimony. The testimony of Renteria does not support the statement that the work for Crew 94 did not vary from driving tractors except for one or two days per year. Renteria never stated one or two days per year. Paragraph 6 should be stricken as misleading and unsupported. Paragraph 10 is unsupported by admissible evidence. Daffren's belief, without more, is legally insufficient to constitute adequate evidence in the context of a summary judgment motion. See Columbia Pictures, Inc, 944 F.2d at 1529 (affiant's belief does not constitute proper evidence for consideration on summary judgment). Consequently, the allegations in Paragraph 10 should be stricken as unsupported and conclusory. Paragraph 11 is misleading as it fails to state which defendant employed Brandt and Byrd during early 2002. Phoenix Agro began to employ management level employees, including Brandt and Byrd, in July of 2002. Plaintiffs' Statement of Facts in Support of Their Motion for Partial Summary Judgment Paragraphs 12 and 16 clarify that Phoenix Agro did not employ management level employees until July 2002, months after Plaintiffs' -3That portion of Paragraph 4 should be stricken as

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employment with Eagle Produce ended. See also Defendants' Undisputed Statement of Facts in Support of Their Motion for Summary Judgment ¶ 2. Paragraph 11 should be modified to indicate that only Eagle Produce employed Brandt and Byrd when they supervised Plaintiffs. Paragraph 12 is misleading and misstates testimony. Daffren testified that he never laid off workers. No evidence exists that previous supervisors of Crew 94 laid off workers. Paragraph 12 should therefore be stricken as unsupported. Paragraph 13 is misleading and misstates testimony. While there are always tractor positions for the harvest crew, there were not always openings for additional tractor drivers. Daffren never testified that positions were always available. Paragraph 13 should be stricken as unsupported. Paragraph 27 is not supported by the cited testimony. The cited testimony deals with attendance records and does not provide evidentiary support for Paragraph 27. Accordingly, Paragraph 27 should be stricken. Paragraph 36 is misleading and mischaracterizes testimony. The letter in question specifically states that Diaz was laid off due to a work slow down. The other items listed are an explanation as to why Diaz was chosen to be laid off. Paragraph 36 should be modified to reflect the actual text of the letter. Paragraph 40 misstates testimony as Daffren testified that he did not recall disciplinary problems with Moreno; he did not state that none existed. Paragraph 40 should be modified to reflect that Daffren did not recall disciplinary problems with Moreno. Paragraph 43 is hearsay. Notes by an EEOC investigator describing a conversation he had with Redmond is hearsay and not admissible. Paragraph 43 should be stricken. Paragraph 58 is vague, conclusory and inadmissible. In an affidavit, Renteria hints that other Eagle Produce employees cashed checks on company property. He does not mention who these employees are, when they cashed checks, or who their supervisor was. This is not a specific fact supported by evidence necessary to be considered in opposition to

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summary judgment. Paragraph 58 should be stricken. Paragraph 59 contradicts deposition testimony given by Renteria. At his deposition, Renteria stated that Gilberto Vigueria told him that he wanted to fire all the workers that he did not like. After being asked "Gilberto never told you that he was going to get rid of the people who were older," Renteria responded, "No. No." Renteria testified that Vigueria wanted to fire the people he did not like, which has nothing to do with age. After his deposition, Renteria made substantive changes to his deposition testimony. Disregarding the purpose of Fed. R. Civ. P. 30(e), Renteria reversed his answers to various questions on the basis that he was confused. Despite making significant changes, he never altered the testimony regarding Vigueria's comment. Now, after Defendants have filed their motion for summary judgment, Renteria is alleging by an affidavit that Vigueria told him that he intended to fire the older workers because he did not like them. A party cannot create issues of fact by an affidavit contradicting his prior deposition testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Based upon the "sham" affidavit rule, Paragraph 59 must be stricken. Paragraph 67 misstates testimony and represents speculation, not fact. Brandt

testified that the new workers were hired to fill the work load that he needed at the time. He also stated that it was possibye the same work performed by Plaintiffs, but that he was unsure. Plaintiffs' allegation that Brandt testified that "[s]everal of the replacement workers were hired to do the same work as the Plaintiffs had done when they were employed" is inaccurate. Additionally, Brandt's statement is pure speculation and not admissible

evidence. Accordingly Paragraph 67 should be stricken. III. EXHIBIT N TO PLAINTIFFS' STATEMENT OF GENUINE ISSUES MUST BE STRICKEN AS INADMISSIBLE HEARSAY. Paragraphs 38, 44, 54, 55 and 65 should be stricken as inaccurate and inadmissible hearsay. These paragraphs are based entirely upon Exhibit N, which is a chart prepared by John Redmond. At his deposition, Redmond testified that he prepared Exhibit N for the EEOC by pulling the information off of "payroll records." He stated that he hoped Exhibit N -5-

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was an accurate description of the payroll records. Exhibit N was disclosed to Plaintiffs as they asked for all documentation given to the EEOC during their investigation. During the depositions in this case, Defendants realized that Plaintiffs were relying upon the information in Exhibit N without verifying the accuracy of the information. Defendants wrote a letter to Plaintiffs on February 24, 2005, pointing out that Exhibit N was inaccurate. Defendants suggested that Plaintiffs utilize employee files and disclosed payroll records in order to accurately determine the categories of information contained in Exhibit N. Defendants also asked Plaintiffs to advise them if they required any additional information in light of the inaccuracies of Exhibit N. Discovery closed on May 9, 2005. Defendants provided to Plaintiffs discovery after February 24, 2005, pursuant to Plaintiffs' requests. Exhibit N is hearsay. It is not subject to the business record exemption to hearsay because Exhibit N is not kept in the course of a regularly conducted business activity. Charts of this nature could be admissible as a summary under Fed. R. Evid 1006 if the underlying documents are admissible, i.e. not hearsay. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984). It is unknown exactly what "payroll records" Redmond

examined in order to create Exhibit N. Without knowing exactly what Redmond examined, the underlying documents are inadmissible, making Exhibit N inadmissible. Additionally, a chart would have to accurately summarize the materials involved in order to be admissible as evidence. Because it is unknown the exact materials Redmond utilized, it cannot be said that Exhibit N accurately summarizes admissible evidence. In fact, dates on Exhibit N are incorrect when compared with personnel files. See Defendants' Supplemental Statement of Facts in Support of Their Motion for Summary Judgment ¶¶ 1,3. Because the chart is inadmissible, Paragraphs 38, 44, 54, 55 and 65 should all be stricken. IV. CONCLUSION Plaintiffs' Statement of Facts contains inadmissible evidence that should not be considered when deciding Defendants' Motion for Summary Judgment. Defendants move to strike the foregoing inadmissible evidence, as set forth above. Therefore,

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RESPECTFULLY SUBMITTED this 19th day of September, 2005.

s/ Brandon A. Newton J. Mark Ogden J. Greg Coulter Brandon A. Newton LITTLER MENDELSON, P.C. Attorneys for Defendants I hereby certify that on September 19, 2005, 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: Kristina Campbell George H. McKay Community Legal Services 305 South Second Avenue Phoenix, AZ 85036-1538 s/ Ruth A. Mare
Firmwide:80419266.1 046716.1003

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