Free Motion in Limine - District Court of Arizona - Arizona

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JOSEPH C. DOLAN, ESQ. (007376) 1650 North 1st Avenue Phoenix, Arizona 85003 (602) 266-7667 Fax (602) 277-9839 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT IN AND FOR DISTRICT OF ARIZONA JERRY SIMMS, a single man, Plaintiff, vs STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; ABC CORPORATIONS I-X; JOHN DOES I-X, Defendants. CV-03-1415-PHX-ROS MOTION IN LIMINE NO. 1 RE: DEFENDANT'S EXHIBIT 54 (GRAND JURY TESTIMONY)

Plaintiff hereby moves this Court for an in limine order preventing defendant from utilizing in evidence in any way the evidence described in defendant's Exhibit list, no. 54. Defendant has signaled its intent to utilize the following exhibit. "54. Plaintiff's transcribed testimony of an investigation conducted by a Grand Jury in the Eastern District of California, United States District Court, April 29, 1992." The testimony has no relevance to the insurance claim in the present matter arising out of a fire that occurred some nine years later. It should be noted that the grand jury testimony in question did not result in an indictment or conviction in any way of plaintiff. Defendant is seeking to introduce a piece of highly irrelevant but potentially inflammatory evidence which will serve only to confuse the issues and is unfairly prejudicial. Plaintiff requests that this Court exercise its discretion to prevent such confusion in this matter. The evidence is irrelevant under the Federal Rules of Evidence, Rule 401. The risk of

Case 2:03-cv-01415-ROS

Document 143

Filed 12/02/2005

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prejudice outweighs any possible relevance and must be excluded under Rule 403. If defendant is seeking to introduce this as character evidence it is precluded by Rule 404(b), Rules of Evidence. MEMORANDUM OF POINTS AND AUTHORITIES This transcript has to do totally with an investigation into Senator Alan Robbins of the state of California and Mark Nathanson of the Coastal Commission of the State of California. This was an investigation that took place in the 1991-1992 time frame in the state of California. Plaintiff was not in any way the target of the investigation. Defendant can make no showing under any Federal Rule of Evidence that this is permissible evidence. It is highly irrelevant and highly inflammatory if anything. Rules 401 and 403 preclude its use. Rule 404(b) also prohibits this attempted use of "character" type evidence. Defendant also should not be permitted to cross-examine plaintiff or any other witness by suggesting that such an investigation occurred. It will only serve to inject an entirely collateral matter into evidence which will potentially poison the evidence submitted to the jury. RESPECTFULLY SUBMITTED this 2nd day of December, 2005.

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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By

s/Joseph C. Dolan 007376 JOSEPH C. DOLAN, ESQ. 1650 North 1st Avenue Phoenix, Arizona 85003 Attorney for Plaintiff

CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that on December 2, 2005, 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: William Phillips, Esq. BROENING OBERG WOODS & WILSON 1122 East Jefferson Phoenix, Arizona 85036 Attorneys for State Farm

I HEREBY CERTIFY that on December 2, 2005 I served the attached document by mailing a copy of the following: Hon. Roslyn Silver United States District Court, Suite 624 401 W. Washington Street Phoenix, Arizona 85003-2158

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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s/Joseph C. Dolan, Esq. 007376 Attorney

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