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.

Plaintiff,

No. CV03 1449 PHX PGR MOTION IN LIMINE RE: UNEMPLOYMENT COMPENSATION (Revised and resubmitted with required certificate)

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 reference to the fact that Plaintiff applied for and 20 ultimately obtained unemployment compensation from the State of Arizona. Plaintiff has 21 indicated her intent to introduce such evidence, to include the DES file and the decision 22 rendered by the DES Appeal Tribunal on April 16, 2003. This evidence is expressly made 23 inadmissible under A.R.S. § 23-672.01, which provides the following: 24 25 26 27 28
599076.01

Any finding of fact or law, judgment, conclusion or final order made by a hearing officer, an administrative law judge or any person with the authority to make findings of fact or law in any action or proceeding before the department [Department of Economic Security] or the Appeals Board pursuant to this chapter is not conclusive or binding in any separate or subsequent action or proceeding and shall not be used as evidence in any separate or subsequent action or proceeding between an individual and the individual's present or former employer brought before an arbitrator, court or judge of this state or the United States, regardless of
Case 2:03-cv-01449-PGR Document 64 Filed 01/23/2006 Page 1 of 4

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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

whether the prior action or proceeding was between the same or related parties or involved the same facts. A.R.S. § 23-672.01 (emphasis added). In addition, this evidence is inadmissible under Fed.R.Evid. 402 and 403, and it invades the province of the jury. There is no probative value in allowing the jury to consider how DES personnel may have interpreted some of the evidence relevant to this case. The jury is to hear that evidence and decide for itself what conclusions to draw. It would be unduly prejudicial to present the conclusions of an administrative law judge to the jury. The ALJ decision carries no estoppel effect. It simply reflects one man's Moreover, the

interpretation of some of the evidence that the jury itself will hear.

administrative DES proceedings occurred in an entirely different context, in an expedited fashion, without counsel or discovery and without the same rules of evidence that apply in this Court. The findings or conclusions of DES, therefore, should not be admitted, as they lack probative value. In light of the foregoing, the Plaintiff should be precluded from using or referring to the DES Appeals Tribunal decision or any other evidence that she sought and was awarded unemployment compensation. RESPECTFULLY SUBMITTED this 23rd day of January, 2006. SACKS TIERNEY P.A.

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SACKS TIERNEY

By:

s/ Mark D. Dillon Mark D. Dillon

CERTIFICATE OF COUNSEL

Undersigned counsel hereby certifies that he has personally consulted with opposing 24 counsel and despite sincere effort has been unable to satisfactorily resolve the issues raised in the above Motion in Limine. 25 26 27 28
599076.01

SACKS TIERNEY P.A.

By:
Case 2:03-cv-01449-PGR

s/ Mark D. Dillon
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Document 64 2 Filed 01/23/2006

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P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

Mark D. Dillon

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599076.01

SACKS TIERNEY

Case 2:03-cv-01449-PGR

Document 64 3 Filed 01/23/2006

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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

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599076.01

SACKS TIERNEY

Case 2:03-cv-01449-PGR

Document 64 4 Filed 01/23/2006

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