Free Supplement - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12

David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 William P. Allen (SBA 011161) ALLEN LAW FIRM LLC 1650 North Central Avenue Phoenix, AZ 85003 Telephone: (602) 495-6502 Facsimile: (602) 277-9839 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Connie B. Pappas,

13

Plaintiff,
14 15 16 17 18 19 20 21

No. CV-03-1449-PHX-PGR Plaintiff's First Supplemental Trial Memorandum

vs. J.S.B. Holdings, Inc., d.b.a. R&D Specialty/Manco, Defendant.

Plaintiff submits this first supplement to her Trial Memorandum to address an issue raised by the Court in the June 21, 2006 supplemental pretrial conference, i.e. the burden of providing evidence regarding a defendant's net worth in a punitive damages case.

22

Under federal law, this burden is placed on a defendant. See, Provost v. City of
23 24 25 26

Newburgh, 262 F.3d 146, 163 (2d Cir. 2001); Mason v. Oklahoma Turnpike Authority, 182 F.3d 1212, 1214 (10th Cir. 1999); Kemezy v. Peters, 79 F.3d 33 (7th Cir. 1996). As the Court of Appeals noted in this latter decision:

Plaintiff's Trial Memorandum - 1 Case 2:03-cv-01449-PGR Document 100 Filed 06/26/2006 Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

It ill becomes defendants to argue that plaintiffs must introduce evidence of the defendant's wealth. Since most tort defendants against whom punitive damages are sought are enterprises rather than individuals, the effect of such a rule would be to encourage plaintiffs to seek punitive damages whether or not justified, in order to be able to put before the jury evidence that the defendant has a deep pocket and therefore should be made to pay a large judgment regardless of any nice calculation of actual culpability.... Individual defendants, as in the present case, are reluctant to disclose their net worth in any circumstances, so that compelling plaintiffs to seek discovery of that information would invite a particularly intrusive and resented form of pretrial discovery and disable the defendant from objecting. Since, moreover, information about net worth is in the possession of the person whose net wealth is in issue, the normal principles of pleading would put the burden of production on the defendant--which, as we have been at pains to stress, is just where defendants as a whole would want it. Id. at 36. Indeed, the court of appeals noted that only two jurisdictions, California and Wyoming, have placed the burden of producing net worth evidence on plaintiffs. Arizona, like the federal courts, has also placed this burden on defendants. Niensteadt v. Wetzel, 133 Ariz. 348, 651 P.2d 876 (App. 1982). In response to the defendant's argument on appeal that the plaintiff failed "to introduce evidence relative to [defendants'] wealth or financial resources resulted in the jury having no way of relating puinitive damages to [defendants']

17

economic status," the Arizona court of appeals stated,
18 19 20 21 22 23 24 25

[W]e are aware of no authority, nor has appellant cited any authority, indicating that evidence of wealth is a necessary prerequisite to an award of punitive damages. (citations to cases holding such evidence is not required omitted). In any event, defendants cannot complain of the absence of evidence of his wealth when he has made no effort to introduce such evidence. Id. at 357. As noted in Mrs. Pappas' initial brief, a Title VII plaintiff seeking punitive damages "must identify facts sufficient to support an inference that the requisite mental state [i.e. malice

26

or reckless indifference to a claimants federally protected rights] can be imputed to the Plaintiff's Trial Memorandum - 2 Case 2:03-cv-01449-PGR Document 100 Filed 06/26/2006 Page 2 of 4

1 2 3 4

employer." Kolstad v. American Dental Association, 527 U.S. 526, 546 (1999). A defendant, however, may avoid punitive damages if if it has made good faith efforts to comply with Title VII's prohibitions against discrimination and harassment. As the foregoing demonstrates, it is also the defendant's burden to present net worth evidence if it wishes to argue against an

5 6 7 8

excessive award.

Finally, in the Title VII context, new worth evidence is of limited relevance given the fact that punitive damages fall with in the caps provided by 42 U.S.C. 1981a.

9 10 11 12 13 14 15 16 17

RESPECTFULLY SUBMITTED this 26th day of June, 2006.

DAVID C. LARKIN, P.C. By: /s David C. Larkin David C. Larkin

and
18 19

ALLEN LAW FIRM, LLC
20

By: /s William P. Allen
21

William P. Allen
22

Attorneys for Plaintiff
23 24 25 26

Plaintiff's Trial Memorandum - 3 Case 2:03-cv-01449-PGR Document 100 Filed 06/26/2006 Page 3 of 4

1 2 3 4 5 6 7 8

Electronic notice and service of documents provided to: Sharon S. Moyer No. 013341 Mark D. Dillon No. 014393 SACKS TIERNEY P.A. 4250 N. Drinkwater Blvd., 4th Floor Scottsdale, AZ 85251-3693 Attorneys for Defendants /s David C. Larkin

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff's Trial Memorandum - 4 Case 2:03-cv-01449-PGR Document 100 Filed 06/26/2006 Page 4 of 4