Free Motion in Limine - District Court of Arizona - Arizona

1 Sharon S. Moyer No. 013341 [email protected] 2 Mark D. Dillon No. 014393 [email protected] 3 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor 4 Scottsdale, AZ 85251-3693 Telephone: (480) 425-2600 5 Attorneys for Defendant 6 7 8 9 10 11 CONNIE PAPPAS,
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

12 13 vs.

No. CV03 1449 PHX PGR Plaintiff, MOTION IN LIMINE RE: WITNESS JANICE WILT

SACKS TIERNEY

14 J.S.B. HOLDINGS, INC., AN ARIZONA CORPORATION, DBA 15 R&D SPECIALTY/MANCO, 16 17 18 Defendant.

Defendants JSB Holdings, Inc. ("JSB") hereby moves the Court, in limine, for an

19 Order excluding from evidence any testimony from witness Janice Wilt or about Janice 20 Wilt regarding her claim that she herself was subjected to sexual harassment while she 21 worked at JSB, the she filed a charge of discrimination with the EEOC, that she filed a 22 lawsuit against JSB or that she settled that suit. 23 There has been no finding that Ms. Wilt did, in fact, suffer sexual harassment--the 24 EEOC dismissed her charge and her lawsuit was settled without a trial. If testimony about 25 Ms. Wilt's alleged experience at JSB were raised at trial, the trial would be diverted into a 26 trial of two sexual harassment claims, rather than the claim of Plaintiff alone. The Court 27 has the power to prevent such a waste of time under Fed. R. Evid. 403. 28
599085.01

Evidence of Ms. Wilt's experience should be excluded under Fed. R. Evid. 402 for
Case 2:03-cv-01449-PGR Document 65 Filed 01/23/2006 Page 1 of 4

1 the additional reason that it is irrelevant, as there is no similarity between the conduct of 2 which Ms. Wilt complained and the conduct of which Plaintiff complains. Ms. Wilt 3 complained of harassing conduct by a co-employee named Nick Hardaway. Plaintiff has 4 made no mention that Mr. Hardaway was in any way involved in creating the hostile 5 environment of which she complains. Moreover, Ms. Wilt complained of conduct that 6 bears no resemblance to the conduct Plaintiff alleges in this case. Ms. Wilt was supposedly 7 "harassed" when Mr. Hardaway asked her to reach into his pants pocket to retrieve a thread 8 gauge. Plaintiff complains of entirely different verbal and physical conduct (cursing at her, 9 vandalism of her desk and possessions, etc.) 10 Moreover, evidence of Ms. Wilt's alleged experience would constitute inadmissible

11 character evidence under Fed. R. Evid. 404(a). Plaintiff's purpose in presenting such
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

12 evidence to the jury would undoubtedly be to "demonstrate" that JSB has harassed others 13 and that it is, therefore, more likely that JSB has harassed her. This is precisely the type of 14 character evidence that Rule 404 prohibits. At a minimum, if Ms. Wilt is allowed to testify, 15 she should be subject to examination outside the presence of the jury to determine whether 16 her supposed experience at JSB should be presented to the jury as probative of any issue in 17 the present case. 18 Finally, evidence that JSB settled with Ms. Wilt is inadmissible under Fed. R. Evid.

SACKS TIERNEY

19 408. Under Rule 408, evidence that JSB compromised and settled Ms. Wilt's claim is 20 expressly made inadmissible to prove liability. 21 22 23 24 25 26 27 28
599085.01

RESPECTFULLY SUBMITTED this 23rd day of January, 2006. SACKS TIERNEY P.A.

By:

s/ Mark D. Dillon Mark D. Dillon

Case 2:03-cv-01449-PGR

Document 65 2 Filed 01/23/2006

Page 2 of 4

1 2 CERTIFICATE OF COUNSEL Undersigned counsel hereby certifies that he has personally consulted with opposing 3 counsel and despite sincere effort has been unable to satisfactorily resolve the issues raised in the above Motion in Limine. 4 5 6 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

SACKS TIERNEY P.A.

By:

s/ Mark D. Dillon Mark D. Dillon

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
599085.01

SACKS TIERNEY

Case 2:03-cv-01449-PGR

Document 65 3 Filed 01/23/2006

Page 3 of 4

1 2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 23rd, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: 4 Lynn M. Laney, Jr., Esq. LAW OFFICE OF LYNN M. LANEY, JR. 5 934 W. McDowell Road Phoenix, Arizona 85007-1730 6 Attorneys for Plaintiff 7 8 9 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

s/ Mark D. Dillon Mark D. Dillon

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
599085.01

SACKS TIERNEY

Case 2:03-cv-01449-PGR

Document 65 4 Filed 01/23/2006

Page 4 of 4