Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5

Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

6

IN THE UNITED STATES DISTRICT COURT
7

FOR THE DISTRICT OF ARIZONA
8 9 10

Patrice Jerome, plaintiff, vs.

No. CV 03-1913-PHX-MHM Plaintiff's Response to Defendants' Motion to Dismiss Plaintiff's Economic Damages Claim as Discovery Sanction or, in the alternative, to Continue Defendants' Dispositive Motion Deadline

11 12 13 14 15

Midway Holdings, Inc., Midway Auto Team, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac, and Midway Chevrolet, defendants.

Plaintiff respectfully responds to Defendants' Motion to Dismiss Plaintiff's Claim
16

for Economic Damages, or, alternatively, to Continue Defendants' Dispositive Motion
17

Deadline and asks that the Motion be denied because it is not justified as a matter of
18

fact or law for the following reasons:
19

1.
20

Discovery in this matter closed on Monday, October 3, 2005. On August 31, 2005, Defendants served their Second Request for Production of Documents on Plaintiff.

2.
21 22

3.
23

Although the Requests was certified by Defendants' counsel (Ms.

Case 2:03-cv-01913-MHM

Document 60

Filed 01/18/2006

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Stephanie Osteen) to have been hand-delivered on August 31, 2005, it was delivered to Plaintiff's counsel's office after the close of business, which would have made the responses to the Request due on Monday, October 3, 2005, the last day of discovery. 4. The Request for Production sought Plaintiff's federal and state tax returns, a signed Social Security Administration release form, an authorization for Defendants to obtain copies of Plaintiff's unemployment records from the Arizona Department of Economic Security, and all bank statements maintained by Plaintiff since April 1, 2002 to August 31, 2005. 5. As Plaintiff and her counsel have informed counsel for Defendants at both of her two depositions, Plaintiff has not filed tax returns for several years and is consequently unable to produce any tax returns. 6. Likewise, because Plaintiff has not filed tax returns, neither the Internal Revenue Service nor the Arizona Department of Economic Security has any returns to provide to Defendants. 7. In any event, Plaintiff has provided Defendants with executed versions of all of the releases Defendants have requested. See attached Exhibits A and C. 8. Defendants have not been prejudiced by any delay in receiving the requested releases because they would have received the releases after the close of discovery on Monday, October 3, 2005 in any event. 9. Because Plaintiff does not have any tax returns, and several of her
-2-

Case 2:03-cv-01913-MHM

Document 60

Filed 01/18/2006

Page 2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

employers did not provide her with W-2 forms, she is not able to calculate her claim for lost wages with mathematical precision. Plaintiff has provided Defendants with a written estimate of her lost wages. See attached Exhibit B. 10. Moreover, in her deposition, Plaintiff identified all of her employers, and Defendants were consequently free to subpoena all of her employment files from her former employers and use those files to impeach Plaintiff's testimony regarding her alleged lost wages at trial. 11. The mere fact that Plaintiff cannot calculate her lost wages with mathematical certainty is no reason to dismiss her claim for economic damages. 12. Instead, this issue goes only to the weight of Plaintiff's testimony in that regard, and Defendants will be free to cross-examine Plaintiff regarding her alleged lost wages and any lack of precision regarding her lost wage calculations. 13. Accordingly, under the circumstances, there is no basis to dismiss Plaintiff's claim for economic damages, and Defendants' Motion to Dismiss should be denied. 14. Defendants' request for sanctions is especially inappropriate (and hypocritical) in light of Defendants' own dilatory discovery conduct. 15. For example, Defendants noticed the deposition of the individual (Mr. Jack Colson) that they claim is the "decision-maker" in this employment
-3-

Case 2:03-cv-01913-MHM

Document 60

Filed 01/18/2006

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

discrimination action for the first time on Friday, September 30, 2005, when discovery was scheduled to close on the following Monday, October 3, 2005. 16. Instead of objecting to the deposition of Mr. Colson as untimely, Plaintiff's counsel actually stipulated that Defendants could take Mr. Colson's deposition on February 8, 2006 in Atlanta, Georgia four months after the expiration of discovery. 17. Moreover, Defendants did not notify the Court of any discovery disputes in this case until December 2, 2005, almost two months after the close of discovery. 18. Thus, Defendant is guilty of the same conduct for which it criticizes Plaintiff, the only difference being is that Plaintiff's counsel has cooperated with Defendants in proceeding with Defendants' untimely discovery requests. 19. Because of Defendants' own dilatory conduct in reference to both serving their written discovery and noticing Mr. Colson's deposition, Defendants' request for sanctions and to engage in yet additional discovery should also be denied.

Dated the 18th day of January, 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya
-4-

Case 2:03-cv-01913-MHM

Document 60

Filed 01/18/2006

Page 4 of 5

1 2 3 4 5

3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

CERTIFICATE OF SERVICE
6

:
7 8

I hereby certify that on January 18, 2006, 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:

9 10 11 12 13 14 15 16 17 18 19

Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201 Attorneys for Defendants

:

I further certify that on January 19, 2006, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya
20 21 22 23 -5-

Case 2:03-cv-01913-MHM

Document 60

Filed 01/18/2006

Page 5 of 5