Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, husband and wife, Plaintiffs, v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations IX; and XYZ Partnerships I-X, Defendants. NO. CV 03-2077-PHX-EHC MOTION PURSUANT TO RULE 50 FRCP RE CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

This Court has indicated that it intends to instruct the jury on intentional infliction of emotional distress even though summary judgment on this claim was granted by the Court on February 15, 2005. Defendants' previously filed Rule 50 Motion did not include a discussion of this claim since, at that time, the Court had not indicated its intention to resurrect this count. First, reinstating a long-dismissed claim during trial is impermissible. See, e.g., South Dakota Farm Bureau v. Hazeltine, 340 F.3d 583, 590-91 (8th Cir. 2003). Because summary judgment was granted as to the intentional infliction of emotional distress claim, Defendants did not have notice that such a claim was going to be argued at trial, and did not prepare to defend against such a claim.
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Second, on the assumption that the Court will instruct the jury on the elements of intentional infliction of emotional distress, the Defendants now move, pursuant to Rule 50 FRCP, for judgment as a matter of law as to that claim. In order to withstand such a motion, there must be evidence that: 1)

Defendants' conduct was extreme and outrageous; 2) Defendants' conduct was either intentional or reckless; and 3) Defendants' conduct caused Plaintiff to suffer severe emotional distress. (See Revised Arizona Jury Instruction (Civil) 4th, Intentional Tort 16). As noted by the Court in its order of February 15, 2005, Plaintiff must prove that Defendants' acts were: [S]o outrageous in character and so extreme in degree, as to go beyond all possible bands of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Cluff v. Farmers Ins. Exchange, 460 P.2d 666, 668 (1969). "[I]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Mintze v. Bell Atlantic Systems Leasing Intern., Inc., 183 Ariz. 550, 5504 (Ariz. App. Div. 1, 1995) (citations omitted). Mere discrimination or retaliation are not sufficient. Id. Even if a defendant's conduct is unjustifiable, it does not necessarily rise to the level of "`atrocious' beyond all possible bounds of decency" that would cause an average member of the community to believe that it was "outrageous." See Ford v. Revlon, 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); Watts Golden Age Nursing Home, 127 Ariz. 255, 619 P.2d 1032 (1980); Tempesta v. Motorola, Inc., 92 F.Supp.2d 973, 986 - 87 (D. Ariz. 2000). This point is illustrated by noting some of the conduct for which Arizona has not found the intentional infliction of emotional distress. In Mintz, the court found that Mintz did not sustain a claim for intentional infliction of emotional distress when an employer delivered a letter to her while in the hospital for severe emotional problems informing her that her job duties were being reassigned. 183 Ariz. 550, 905 P.2d 559 (Ariz. App. 1995). The court specifically held
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that delivering Mintz a letter in the hospital did not rise to the level of outrageousness to support a claim for intentional infliction of emotional distress. See id. 183 at 554. In Nelson v. Phoenix Resort Corp., Nelson was taken out of his office and fired in front of news media that had been invited to watch. 181 Ariz. 188, 888 P.2d 1375 (App. 1994). The court affirmed the grant of summary judgment to the employer on the employee's claim that the manner in which she was discharged caused extreme emotional distress. Additionally, there is no evidence that the Plaintiff suffered "severe" emotional distress as Arizona law requires. While there need not be physical injury, ordinary anger, shame or offense is not enough. Rather the emotional response to the defendant's actions must be extreme. Panratz v. Willis, 155 Ariz. 8, 17, 744 P.2d 1182, 1191 (App. 1987). Arizona cases illustrate the distinction between ordinary emotional distress and the severe distress that can be actionable. In Venerias v. Johnson, 127 Ariz. 496, 622 P.2d 55 (App. 1980), for example, the plaintiff became a "nervous wreck" due to the defendants' harassment and had to undergo medical treatment. Nonetheless, the court held this reaction was not severe enough to be actionable. It noted, among other things, that plaintiff was not hampered from performing daily functions. 127 Ariz. at 500, 622 P.2d at 59. In Midas Muffler v. Ellison, 133 Ariz. 194, 650 P.2d 496 (1982), the plaintiff claimed the defendant's harassing phone calls upset her, made her cry and caused her to have difficulty sleeping. Again, the court held that this did not constitute severe emotional distress. In contrasted the plaintiff's response with several examples of

extreme distress found to be actionable: a heart attack and nervous exhaustion, extreme shock and hysteria, and severe headaches and stress. 133 Ariz. at 199, 650 P.2d at 501.

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Here, there is no evidence in the record that Plaintiff experienced any emotions with respect to any of the incidents giving rise to his claims. In short, there is no testimony that he suffered any type of distress, let alone, extreme distress, which is one of the principle elements which Plaintiff has the burden of proving. For all of the foregoing reasons, Defendants request this Court rule, as a matter of law, that Plaintiff has failed to meet his burden, thus precluding this claim from being presented to the jury. DATED this 30th day of October 2006. JONES, SKELTON & HOCHULI, P.L.C.

By

/s/ George A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County

Original e-filed and copies of the foregoing faxed/e-mailed this 30th day of October 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Fax: 602-322-7539

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Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1920 South Alma School Road Suite A-115 Mesa, AZ 85210 Attorney for Plaintiffs 480-839-4711 FAX: 480-452-1753 E-mail: [email protected] /s/ Lynda Paulson

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