Free Motion in Limine - 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 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF OR REFERENCES TO JOHN MCCALL (Oral Argument Requested)

AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC., 18 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, moves in limine to exclude at trial any testimony of or references to John McCall. John McCall's testimony or references to him should be excluded from trial because: 1) it is

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1 irrelevant and therefore inadmissible pursuant to Fed.R.Civ.P. 401 and 402; and, 2) its 2 probative value, if any, is substantially outweighed by unfair prejudice, confusion of the 3 4 5

issues, and misleading the jury. Fed.R.Civ.P. 403. This case involves Plaintiffs Frankie Tyree's and Beth D'Aguanno's claim that they

6 were subjected to a sexually hostile environment while employed at ABC Supply Company's 7 Mesa branch. At trial, Plaintiffs intend to call John McCall, the current branch manager at 8 9 10

ABC's Mesa branch.

John McCall was not even employed by ABC company until

December 2002, two years after Plaintiffs left the company. Plaintiffs intend to use John

11 McCall to testify as to what the environment was like at the Mesa branch two years after 12 Plaintiffs no longer worked there. 13 14 15

John McCall has no knowledge regarding the

environment at the Mesa branch during the period that Plaintiffs worked there. To be relevant, evidence must have a "tendency to make the existence of any fact that

16 is of consequence to the determination of the action more probable or less probable than it 17 would be without the evidence." Fed.R.Evid. 401. Testimony regarding the environment at 18 19 20

the Mesa branch, by someone who had never even been to the Mesa branch until two years after Plaintiffs left, would not have a tendency to make the existence of any fact that would

21 be of consequence in this action more or less probable than without the testimony. Indeed, 22 the environment at the Mesa branch two years after Plaintiffs left has no relevance 23 24 25 26

whatsoever to the determination of whether Plaintiffs were subjected to a sexually hostile environment at the Mesa branch while they were employed there.

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Even if John McCall's testimony had some marginal relevance, it should still be

2 excluded because its probative value, if any, is substantially outweighed by the danger of 3 4 5

unfair prejudice, confusion of the issues, misleading the jury, and waste of time. John McCall is expected to testify that upon his becoming manager of the Mesa branch in

6 December of 2002, he had to admonish employees there not to engage in sexually 7 inappropriate behavior. The only possible motive for Plaintiffs to offer this testimony is in 8 9 10

the hopes that the jury will draw an improper inference that because there may have been some instances of sexual misconduct two years after Plaintiffs left the company, that

11 Plaintiffs were exposed to a hostile environment during the time that they worked there. 12 Plaintiffs cannot be allowed to confuse or mislead the jury into making this erroneous 13 14 15

conclusion. Indeed, Plaintiff Tyree was the branch manager during the time that both Plaintiffs' were employed by Defendant. By the time John McCall began his employment

16 with Defendant, the branch had already been managed by a different manager for two years. 17 Thus, the environment allegedly existing at the branch two years after Plaintiffs left is not at 18 19 20 21

all probative of the environment existing at the branch during the Plaintiffs' period of employment. Because John McCall's testimony is irrelevant and its probative value is substantially

22 outweighed by the danger of prejudice to Defendants, he should be precluded from testifying 23 24 25

at trial and no mention of him should be made by counsel. ...

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RESPECTFULLY SUBMITTED this 19th day of August, 2005. SHUGHART THOMSON & KILROY, P.C. By: s/ Jody C. Corbett Brian M. Goodwin Jessica Franken JoEllen Benton Jody C. Corbett Attorneys for Defendant ABC SUPPLY COMPANY, INC. I electronically transmitted the foregoing

9 I hereby certify that on August 19, 2005, 10 document to the U.S. District Court 11

Clerk's Office by using the CM/ECF System for filing and transmittal of a Notice of Electronic filing to the 12 following CM/ECF registrant:
13 14 Stephen G. Montoya, Esq.

MONTOYA JIMENEZ P.A. 15 3200 N. Central Avenue, Suite 2550 Phoenix, AZ 85012 16 Attorneys for Plaintiffs
17 18 of the foregoing document and the 19 notice of Electronic filing to be

I further certify that I caused a copy

mailed postage prepaid, to the 20 following:
21

The Honorable David G. Campbell 22 United States District Court Sandra Day O'Connor U.S. Courthouse 23 Suite #623 24 401 W. Washington St., SPC 58 Phoenix, AZ 85003-2156
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s/ Jody C. Corbett

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