Free Reply to Response to Motion - District Court of Arizona - Arizona

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Brian M. Goodwin AZ (002487) Jessica Franken AZ (011484) JoEllen Benton AZ (022351) Jody C. Corbett AZ (019718) SHUGHART THOMSON & KILROY, P.C. One Columbus Plaza 3636 N. Central Ave., Ste 1200 Phoenix, AZ 85012 Telephone (602) 650-2000 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendant ABC Supply Company, Inc. THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BETH D'AGUANNO and FRANKIE TYREE, Plaintiff, vs. CASE NO. CV 03-1408-PHX-DGC DEFENDANT AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC.'S REPLY IN SUPPORT OF ITS MOTION TO SEVER PLAINTIFFS ON THE GROUND OF MISJOINDER (Oral Argument Requested) (Assigned to The Honorable David G. Campbell)

AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., 19 D/B/A ABC SUPPLY COMPANY, INC.,
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Defendant.

Defendant, American Builders & Contractors Supply Co., Inc. d/b/a ABC Supply Company, Inc. (hereinafter "ABC" or "Defendant") by and through undersigned counsel, hereby submits its Reply in Support of its Motion to Sever Plaintiffs on the Ground of Misjoinder ("Motion to Sever").
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In their Response to Defendant's Motion to Sever,
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1 Plaintiffs failed to demonstrate that they meet the requirements necessary to join together in 2 this action. 3 4 5 6 7 8 9 10 11 12 13 14 15

Plaintiffs also do not deny that their being joined at trial would result in

substantial prejudice to the Defendant and jury confusion. A. PLAINTIFFS DO NOT SATISFY THE REQUIREMENTS FOR PERMISSIVE JOINDER

To join together in this action, Plaintiffs must demonstrate that: 1) they assert a right to relief that arises out of the same transaction, occurrence, or series of transactions or occurrences; and, there are common questions of law and fact.

2)

Fed.R.Civ.P 20(a); Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). 1. Plaintiffs Failed to Demonstrate that Their Asserted Right to Relief Arises Out of the Same Transaction or Occurrence.

First, Plaintiffs allege that their claims are based on the same facts because "many of

16 the individuals who harassed Ms. D'Aguanno also harassed Ms. Tyree..." See Plaintiffs' 17 Response at pg. 1. This is not true. Plaintiff Tyree alleges she was sexually harassed by 18 19 20

Jerry Pearman, Andy Pearman, and Pedro Santiago. See Defendant's Motion to Sever at pgs. 3-4. Plaintiff D'Aguanno alleges she was sexually harassed by Brian Chinavare, Roger Sole,

21 Richard Toddey, Lance Patterson, Richard Oliver, and Marvin Tunik, and Pedro Santiago. 22 Id. at pg. 5. The only individual who both Plaintiffs claim harassed them is Pedro Santiago. 23 24 25

Thus, Plaintiffs' claims of sexual harassment pertain to different individuals, are not therefore based on the same facts, and thus do not arise out of the same transaction or

26 occurrence.

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Second, Plaintiffs allege that their claims are based upon the same facts because

2 Plaintiffs both "worked together at the Mesa branch of ABC supply with the vast majority of 3 4 5

witnesses in this case." See Plaintiffs' Response at pg. 1. This is also not true. In fact, six of the nine witnesses listed by Plaintiff in the Joint Final Pretrial Order either did not work at

6 the Mesa branch with both Plaintiffs or they did not work at the Mesa branch at the time 7 when both Plaintiffs worked there. 8 9 10

Finally, Plaintiffs argue that witnesses listed by them in the Joint Final PreTrial Order will support both of the Plaintiffs' claims. See Plaintiffs' Response at pgs. 1-2. However,

11 even if some of the witnesses would support both of the Plaintiffs' claims, this does not 12 mean that the Plaintiffs' claims arise out of the same transaction or occurrence for purposes 13 14 15

of permissive joinder.

Indeed, in Coughlin v. Rogers, 130 F.3d 1348 (9th Cir. 1997)

(discussed at length in Defendant's Motion to Sever), the Plaintiffs' cases would have

16 involved many of the same witnesses and the court nonetheless ordered that the Plaintiffs' 17 cases be severed. 18 19 20

In Coughlin, Plaintiffs brought an action against the Immigration and Naturalization Service (INS) to adjudicate their pending petitions or applications. Like the witnesses in this

21 case, the witnesses in Coughlin would have consisted of the various Plaintiffs and the 22 employees who worked for the Defendant. However, the court did not even consider the 23 24 25

potential commonality of witnesses as a factor for determining whether the Plaintiffs' claims arose out of the same occurrence or transaction. Instead, they looked at the factual

26 allegations of each Plaintiff's claim and determined that each was different because the

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1 length of each alleged delay was different and the delay itself was disputed in some instances 2 and varied from case to case. Id. at 1350. Accordingly, in this case, like the Plaintiffs' cases 3 4 5

in Coughlin, even if some of the witnesses purport to support both Plaintiffs' claims, this is insufficient to show that the Plaintiffs' claims arise out of the same transaction or occurrence

6 for purposes of meeting the requirement of permissive joinder. Thus, Plaintiffs have failed 7 to demonstrate that they satisfy the first requirement of permissive joinder. 8 9 10

2.

Plaintiffs Failed to Demonstrate Common Issues of Law or Fact.

Plaintiffs argue that there are common issues of law because their claims fall under

11 the law governing sexual harassment under Title VII of the Civil Right Act of 1964 as 12 interpreted by the Ninth Circuit. See Plaintiffs' Response at pg. 2. However, the mere fact 13 14 15

that their claims arise under the same general law does not necessarily establish a common question of law or fact. Coughlin, 130 F.3d at 1351. If each of the Plaintiff's claims is

16 discrete, and involves different legal issues, standards and procedures such that if the cases 17 were not severed, the Court would still have to give each claim individualized attention, then 18 19 20

the claims do not involve common questions of law or fact. Id. As demonstrated in Defendant's Motion to Sever, each of the Plaintiff's claims

21 presents a different factual situation that will need to be applied to the legal standards for 22 sexual harassment separately. Indeed, the jury will have to separate out each of Plaintiff's 23 24 25

allegations of sexual misconduct to determine whether or not the conduct complained of by each in fact occurred. Then, the jury will have to determine, for each individual Plaintiff,

26 whether that alleged sexual conduct was unwelcome by that individual Plaintiff. The jury

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1 will also have to evaluate the severity and pervasiveness of the alleged conduct, as to each 2 Plaintiff, to determine whether the alleged conduct was physically threatening or 3 4 5

humiliating, or a mere offensive utterance, and whether it unreasonably interfered with that Plaintiff's work performance. Finally, the jury will have to determine whether the

6 environment was both objectively and subjectively offensive to that particular Plaintiff. 7 8 9 10

Thus, although Plaintiffs' claims arise under the same general law for sexual harassment, and even if some of the same legal issues may arise, Plaintiffs have failed to demonstrate that there are common issues of fact and law that will obviate the need for the

11 jury to give each Plaintiff individualized attention at trial. Accordingly, Plaintiffs have failed 12 to satisfy the second requirement of permissive joinder. 13 14 15 16 17

B.

PLAINTIFFS DO NOT DENY THAT JOINDER WOULD RESULT IN PREJUDICE TO DEFENDANT AND JURY CONFUSION

Even if Plaintiffs had demonstrated that they met both of the requirements for permissive joinder, which they did not, Plaintiffs' cases should still be severed because the

18 interest of judicial efficiency is outweighed by potential prejudice to the Defendant and jury 19 confusion. 20 21 22

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000).

In

Defendant's Motion to Sever, Defendant pointed out that the prejudice that would result from these cases being tried together would be so substantial that it would deprive Defendant

23 of a fair trial. In Plaintiffs' Response, not only did Plaintiffs not deny that substantial 24 prejudice would result from their joinder, they failed to even address this issue. 25 26

Plaintiffs' allegations arise from separate and distinct acts of alleged sexual misconduct by different people occurring at different time periods. The jury, hearing both
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1 Plaintiffs' and both Plaintiffs' witnesses together, may simply combine all of the allegations 2 and testimony together and draw improper inferences and render erroneous conclusions 3 4 5

about the environment at ABC instead of properly assessing each of the Plaintiff's claims and separately applying the allegations to the factors required to prove sexual harassment.

6 This would substantially prejudice the Defendant who has a right to defend against each of 7 the Plaintiffs' cases individually. 8 9 10

Plaintiffs also did not deny that their joinder would result in jury confusion. At trial, the jury will be required to evaluate whether specific sexual conduct occurred, whether the

11 specific conduct complained of by each individual Plaintiff was unwelcome by each 12 individual Plaintiff and whether it was personally offensive to each individual Plaintiff. 13 14 15

Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004). The jury will also have to determine whether the alleged conduct was sufficiently severe or pervasive as to alter the

16 condition of each Plaintiff's employment and create an abusive environment. Id. Further, the 17 jury will have to assess whether each individual Plaintiff provided notice to ABC and 18 19 20

whether ABC took corrective action as to each respective Plaintiff. The jury will also be required to apply different legal standards to each of the Plaintiff's cases to determine

21 whether ABC can be held liable for the alleged acts. These individual determinations will be 22 impossible for the jury to make if both Plaintiffs and their respective witnesses are permitted 23 24 25

to all testify together in the same trial. The prejudice to Defendant and potential of jury confusion that would result if

26 Plaintiffs are permitted to showcase both of their cases together far outweighs any interest in

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1 judicial economy.

Thus, even if Plaintiffs were able to satisfy the requirements for Although Defendant clearly

2 permissive joinder, their cases should still be severed. 3 4 5 6 7 8 9 10

demonstrated all of the foregoing in its Motion to Sever, Plaintiffs failed to even address the issue of prejudice or jury confusion. C. CONCLUSION

Plaintiffs failed to demonstrate that they meet the requirements necessary to join together in this action. Further, the interest of judicial efficiency would be outweighed by the prejudice to Defendant and the danger of jury confusion if Plaintiffs' cases are tried

11 together. Accordingly, Defendant respectfully requests this Court grant its Motion to Sever 12 the Plaintiffs on the Ground of Misjoinder and order separate trials. 13 14 15 16 17 18 19 20 21 22

RESPECTFULLY SUBMITTED this 7th day of September, 2005. SHUGHART THOMSON & KILROY, P.C.

By: s/ Jody C. Corbett Brian M. Goodwin Jessica Franken JoEllen Benton Jody Corbett Attorneys for Defendant ABC SUPPLY COMPANY, INC. I hereby certify that on September 7,

23 2005, I electronically transmitted the 24 foregoing document to the U.S.

District Court Clerk's Office by using 25 the CM/ECF System for filing.
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I further certify that I caused a copy
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1 of the foregoing document and the 2 mailed postage prepaid, to the 3 following:

notice of Electronic filing to be

4 The Honorable David G. Campbell 5

United States District Court Sandra Day O'Connor U.S. Courthouse Suite #623 6 401 W. Washington St., SPC 58 7 Phoenix, AZ 85003-2156
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s/ Jody C. Corbett

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