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 CINDY CONN (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 Cindy Conn. Cindy Conn's testimony or references to her 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 Cindy Conn, an ex-employee of ABC Supply 8 9 10

Company's Tucson branch to testify regarding the environment at the Tucson branch. Cindy Conn has never met either Plaintiff Tyree or Plaintiff D'Aguanno and has never been to the

11 Mesa branch. See Deposition of Cindy Conn, pg. 40, attached as Exhibit "A." Cindy Conn, 12 has however, previously brought, and settled a claim of hostile environment sexual 13 14 15 16

harassment against ABC Supply Company for conduct she alleges occurred at the Tucson branch. See Exhibit A, pg. 40, 41. To be relevant, evidence must have a "tendency to make the existence of any fact that

17 is of consequence to the determination of the action more probable or less probable than it 18 19 20

would be without the evidence." Fed.R.Evid. 401. Testimony regarding the environment at the Tucson branch, by someone who has never even been to the Mesa branch, would not

21 have a tendency to make the existence of any fact that would be of consequence in this 22 action more or less probable than without the testimony. Indeed, the environment at the 23 24 25

Tucson branch has no relevance whatsoever to the determination of whether Plaintiffs were subjected to a sexually hostile environment at the Mesa branch. Mooney v. Aramco Serv.

th 26 Co., et al., 54 F.3d 1207, 1221 (5 Cir. 1995) (Testimony of witness with different

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1 supervisors working in different parts of the company too attenuated to be relevant). 2 3 4 5

Even if Cindy Conn's testimony had some marginal relevance, it should still be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and waste of time. Plaintiffs should

6 not be able to present a mini-trial regarding whether the Tucson branch's environment was 7 hostile or not. Cindy Conn settled her claim against Defendant for a nominal amount of 8 9 10

money. Defendant thus was never adjudicated to have violated any of her employment rights. Further, her allegations were never admitted by Defendant. She should not be able to

11 testify as to her unsubstantiated claims against Defendant regarding the Tucson branch. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Because Cindy Conn's testimony is irrelevant and its probative value is substantially outweighed by the danger of prejudice to Defendants, she should be precluded from testifying at trial and no mention of her should be made by counsel.

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.

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1 I hereby certify that on August 19, 2 foregoing document to the U.S.

2005, I electronically transmitted the

3 District Court Clerk's Office by using

the CM/ECF System for filing and 4 transmittal of a Notice of Electronic filing to the following CM/ECF 5 registrant:
6 7 MONTOYA JIMENEZ P.A.

Stephen G. Montoya, Esq.

8 3200 N. Central Avenue, Suite 2550

Phoenix, AZ 85012 9 Attorneys for Plaintiffs
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I further certify that I caused a copy of the foregoing document and the 11 notice of Electronic filing to be 12 mailed postage prepaid, to the 13 following:
14 The Honorable David G. Campbell 15

United States District Court Sandra Day O'Connor U.S. Courthouse 16 Suite #623 401 W. Washington St., SPC 58 17 Phoenix, AZ 85003-2156
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s/ Jody C. Corbett

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Exhibit A

INDEX OF EXHIBITS Transcript of the Testimony of Cindy Conn, October 14, 2004 pages 40 and 41

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