Free Motion for Judgment - District Court of Arizona - Arizona

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LAW OFFICE OF ROBERT M. GREGORY, P.C. Robert M. Gregory, State Bar No. 021805 1930 S. Alma School Road, Suite A-115 Mesa, Arizona 85210 Tel: (480) 839-4711 Fax: (480) 452-1753 Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ROBERT GANT and BETTY GANT, husband and wife,

) ) ) Plaintiffs, ) ) vs. ) ) ROGER VANDERPOOL, Sheriff of Pinal ) County; PINAL COUNTY, a political ) subdivision; JOHN DOES, I­X; JANE ) DOES, I­X; ABC-XYZ CORPORATIONS I- ) X; BLACK AND WHITE PARTNERSHIPS ) I-X, jointly and severally, ) ) Defendants. ) ) )

Case No. CV 03-2077-PHX-EHC PLAINTIFFS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL

(Assigned to the Honorable Earl H. Carroll)

Trial in this matter was completed and a jury verdict returned in Defendants' favor on Friday, November 3, 2006. Because the weight of evidence clearly established that Plaintiff Robert Gant had carried his burden of proof, that Defendant had not offered any cognizable legal defenses thereto, and Defendant offered information in its closing argument that the Court had specifically directed Defendant to not discuss at the close of evidence, which evidence was prejudicial to Plaintiff, Plaintiff moves for Judgment as a Matter of Law, and seeks an Order vacating the jury's verdict and awarding damages to Plaintiff. In the alternative, Plaintiff moves for a new trial on the grounds that Defendant's introduction of evidence in its closing argument

Case 2:03-cv-02077-EHC

Document 148

Filed 11/05/2006

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that was prejudicial to Plaintiff and which Defendant had been directed not to discuss constitutes grounds for a mistrial in this matter. I. BACKGROUND During discussions outside the presence of the jury at the close of evidence, the Court directed Defendants to not discuss in their closing argument the polygraph that had been previously admitted as an exhibit, on the grounds that the same was both inflammatory and not admissible generally as a matter of law in the Ninth Circuit. The Court had also warned Defendants repeatedly during their case in chief about not accusing Plaintiff of being a liar, or implicating him in anyway for the polygraph. Notwithstanding the Court's direction to Defendants, counsel briefly introduced the polygraph during her closing arguments, made reference to Plaintiff's alleged untruthfulness, and then quickly turned to another topic. Defendants' closing argument tactic put Plaintiff in the untoward position of either having to object during Defendants' closing argument, and thereby draw attention to Defendants' improperly introduced statements, or let the matter stand. II. LEGAL ARGUMENT "Judgment as a matter of law is appropriate when the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, which is contrary to the jury's verdict." Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir. 1997); see also White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002). Thus, judgment as a matter of law may be granted "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. . . ." FED. R. CIV. P. 50(a)(1); Juhnke v. EIG Corp., 444 F.2d 1323, 1325 (9th Cir. 1971) (noting that directed verdict and motion for judgment notwithstanding the verdict "are measured by the same standards as the latter is merely a renewal of the former"). In considering a Motion for Judgment as a Matter of Law under Rule 50(b), "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make

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credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, because the Court reviews the Record as a whole, the Court "should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id. at 151 (citation and internal quotation marks omitted). Plaintiff carried its burden of proof during trial by the documentary evidence admitted into evidence and the testimony of witnesses, both favorable and adverse, to Plaintiff's case. Plaintiff's evidence regarding key points of the case ­ viability of the assessment center consistent with industry guidelines, notice of the assessment center, the tradition of spending holidays at home, and lesser disciplinary actions taken for much more egregious behavior ­ was substantiated not only by Plaintiff's witnesses, but corroborated by Defendants' witnesses on both direct and cross examination. These substantiated points placed beyond doubt, and certainly by a lesser preponderance of the evidence, that Defendants' conduct constituted both discrimination and a racially hostile work environment; however, the jury unbelievably returned a verdict that apparently ignored this evidence. Plaintiffs can only surmise that the jury either impermissibly disregarded the evidence before them, or was persuaded by Defendants' introduction of evidence that was improper and prejudicial to Plaintiff, and in direct contravention of the Court's direction. III. CONCLUSION For the foregoing reasons, Plaintiff Robert Gant respectfully requests that the Court vacate the jury verdict, and direct Judgment as a Matter of Law in favor of Plaintiff. In the alternative, Plaintiff requests that the Court order a new trial in this matter. RESPECTFULLY SUBMITTED this 5th day of November, 2006. LAW OFFICE OF ROBERT M. GREGORY, P.C. By: s/Robert M. Gregory Robert M. Gregory Attorney for Plaintiffs
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COPY of the foregoing filed this 5th day of November, 2006, with: Clerk of the Court United States District Court District of Arizona COPY of the foregoing faxed this 5th day of November, 2006, to" Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street, SPC 48 Phoenix, AZ 85003-2218 FAX: 602-322-7539 COPY of the foregoing served this 5th day of November, 2006, on CM/ECF registrant: Georgia A. Staton JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants

s/Robert Gregory

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