Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUE A. KLEIN Assistant U.S. Attorney Arizona State Bar No. 11253 Two Renaissance Square 40 North Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. 192.019 Acres of Land, more or less, located in Yuma County, State of Arizona; Glen G. Curtis, Trustee of Curtis Family Trust; Sam Perricone, Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone; Earl O. Zion and Esther E. Zion; Yuma County Tax Assessor, Yuma Hospital District No. 1; Yuma County Citrus Pest Control District; Yuma County Pest Abatement District; Yuma County Flood Control District; Farm Credit Services Southwest; Intangible property rights, Yuma Mesa Irrigation and Drainage District; and Unknown Owners, Defendants. Mr. Dorchester's revised appraisal reports contain no material or substantive changes and CIV-03-2006-PHX-SRB

RESPONSE TO DEFENDANTS' MOTION IN LIMINE REGARDING REVISED APPRAISAL REPORT

21 are, therefore, not prejudicial to defendants. The reports should not be excluded. This response 22 is supported by the attached Memorandum of Points and Authorities,. 23 24 25 26 27 28 Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein ___________________________ SUE A. KLEIN Assistant U. S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants complain that they are prejudiced by changes made by Mr. Dorchester to his

3 appraisal reports. The defendants' primary complaint is that they cannot track the changes. 4 Plaintiff submits that the defendants are not prejudiced by any changes Mr. Dorchester made to 5 his reports and that his reports should not be excluded. 6 During his deposition, in response to questions by defendants' attorney, Mr. Dorchester

7 indicated and explained that changes needed to be made to his reports. (See Exhibit A, 8 Dorchester Deposition, p. 7, l. 20 to p. 9, l. 18). Mr. Dorchester indicated that the changes were 9 not substantive. Mr. Dorchester did not change his estimate of the fair market value or just 10 compensation to be awarded for these properties, he did not change the methodology by which 11 he arrived at those figures, he did not change his analysis of the highest and best use of the 12 property. Defendants have been in possession of Mr. Dorchester's revised reports since May 13 of 2006. Exclusion of Mr. Dorchester's revised reports is not proper pursuant to Fed. R. Civ. 14 P. 37 as the changes made by Mr. Dorchester are not a surprise to defendants, are not prejudicial 15 to defendants, are not material to the opinions contained in the report and were not made in bad 16 faith. As discussed in his deposition, Mr. Dorchester was attempting to be helpful in making the 17 changes to his reports. 18 The changes do not rise to the level of those types of reports to be excluded pursuant to

19 Fed. R. Civ. P. 37. Such evidence is admissible under Rule 37 if the reason for the alleged 20 failure or late disclosure is substantially justified or harmless. See Galentine v. Holland 21 America, 333 F. Supp .2d 991, 993 (W. D. Wash. 2004). Rule 37 establishes an either/or 22 standard in determining whether non-disclosed information is admissible. The non-disclosed 23 information may be admissible if the failure to disclose was either substantially justified or 24 harmless. The Ninth Circuit has also analyzed the harmless element by looking at whether the 25 failure to disclose the information prejudiced the opposing party. See Yeti by Molly Ltd. v. 26 Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). In addition to the prejudice factor, 27 a court should look to the public policy favoring disposition of cases on the merits, the 28
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1 availability of less drastic sanctions, the court's need to manage its docket and the public's 2 interest in expeditious resolution of litigation. See Wendt v. Host International, Inc., 125 F.3d 3 806, 814 (9th Cir. 1997). 4 In this case, there is no prejudice to defendants by disclosure of the revised appraisal reports

5 and there is a clear policy in favor of disposition of these condemnation cases on their merits. 6 As stated above, the changes to Mr. Dorchester's reports were discussed at length at his

7 deposition, defendants received the revised reports in May of 2006, and the bases for Mr. 8 Dorchester's opinions have not changed. Based upon those factors, the reports should be 9 admitted. 10 11 12 13 14 15 16 CERTIFICATION 17 I hereby certify that on July 19, 2006, I electronically transmitted the attached document to 18 the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 19 Filing to the following CM/ECF registrants: 20 21 John A. Weil
Weil & Weil

Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein _____________________________ SUE A. KLEIN Assistant U.S. Attorney

22 Attorneys at Law
1600 S. Fourth Ave., Ste. C

23 Yuma, Arizona 85364 24
s/Nancy Stotler

25 ____________________ 26 27 28
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