Free Response - District Court of Arizona - Arizona

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 27 28

Law Office of James Burr Shields 382 East Palm Lane Phoenix, Arizona 85004-1531 (602) 307-0780 (Office) (602) 307-0784 (Facsimile)
James Burr Shields II, State Bar #011711 John A. Conley, State Bar #016429 Blake Simms, State Bar #021595 Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE STATE OF ARIZONA

) ) ) ) ) Plaintiffs, ) ) vs. ) ) Home Mortgage, Inc., an ) Arizona corporation conducting ) business in Arizona, ) Carl Brown; ) Molly Brown; ) ) Defendants. ) ____________________________)

Cathleen Channel, Theresa Wharry, Stacie Hanson, Monique Nichols,

Case No. CIV 2003-0100 PHX ROS PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE

Plaintiffs, Cathleen Channel, Theresa Wharry, Stacie Hanson, and Monique Nichols, by and through counsel undersigned, hereby file their Response to Defendants' Motion in Limine. Plaintiffs, for the reasons stated below, hereby request the Court deny in its entirety Defendants' motion. MEMORANDUM OF POINTS AND AUTHORITIES I. ARGUMENT A. General Response Plaintiffs first note Defendants continued failure to use the District Court's electronic filing system has caused Defendants' motion in limine to be untimely. The Court, in its June 20, 2007, order, set as the deadline for filing motions in limine July 20, 2007. Defendants' motion in limine did not enter the electronic filing system until July 24, 2007, when the
Document 160 Filed 08/03/2007 Page 1 of 4

Case 2:03-cv-00100-ROS-MEA

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 27 28

Clerk of the Court entered it. As Defendants' motion in limine is completely without merit, Plaintiffs will address the substance and will allow the Court to assess Defendants' filing routines. Plaintiffs also note Defendants' motion lacks any citation or reference to legal authority. The Court's order of June 20, 2007, specifically requested the parties to, in filing motions in limine, cite relevant legal authority. Defendants' motion in limine cites no bases for its attempts to exclude from evidence various lines of questioning and witnesses. The most likely reason for Defendants' failure to cite legal authority is that there is none that would support their request. B. Evidence of Defendants' Wealth Defendants have requested the Court refuse to admit any "mention" of Defendants' wealth. Plaintiffs, at this time have no intention of discussing at trial Defendants' terrific wealth. Plaintiffs will note, however, testimony regarding wealth is admissible, even where punitive damages are not at issue, when a defendant "opens the door" by, for example, testifying he does not have sufficient funds to meet a plaintiff's demand. Reilly v. Natwest Mkts. Group, 181 F.3d 253, 266 (2d Cir. 1999). Plaintiffs will, if Defendants provide any evidence that opens the door, reserve the right to introduce testimony regarding Defendants' wealth. C. Commission Agreements Defendants' attempt to exclude from evidence mention of commission agreements is baseless and misses the point of the current proceedings. First, Defendants, once again, fail to cite to any legal authority that would support their attempt to exclude this evidence. Second, Plaintiffs will, in order to give the Court some background and context into the issues underlying this litigation, testify about their former employment with Home Mortgage, Inc., the corporation Defendants Carl Brown and Molly Brown dominate. Such testimony will, almost assuredly, touch upon their compensation package with Home Mortgage. There is simply no logical way to avoid such testimony. Defendants seem to unable to come to terms with the fact that the issue of whether
-2Document 160 Filed 08/03/2007 Page 2 of 4

Case 2:03-cv-00100-ROS-MEA

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 27 28

Plaintiffs are entitled to the wages they initially sought is no longer a matter of dispute. Plaintiffs have obtained against Home Mortgage a large judgment representing those wages. The only matter at issue herein is whether Defendants Carl Brown and Molly Brown should be personally liable as the alter egos of Home Mortgage. D. Motion to Exclude Testimony Defendants request the Court restrict Plaintiffs' ability to call certain witnesses. Plaintiffs, in their pretrial order, made clear the witnesses they expect to call. Plaintiffs reserve the right to call any witness who may provide relevant testimony. E. Use of Corporate Aircraft Defendants have also requested the Court exclude any testimony regarding Defendants' use of a corporate aircraft. This request defies all logic. Plaintiffs' in order to prevail on their claim Defendants Carl Brown and Molly Brown are the alter ego of Home Mortgage, Inc., needs to show a confused commingling of personal and corporate resources. Personal use of a corporate vehicle, such as an airplane, is evidence of alter ego status. Lambert v. Farmers Bank, Frankfort, Ind., 519 N.E.2d 745, 748 (Ind. Ct. App. 1988). Carl Brown admitted using the corporate aircraft to travel to watch Thoroughbred horse racing. These were events at which horses Defendant Carl Brown owned competed. Defendant Carl Brown admitted these personal trips included travel to "Santa Anita or Del Mar or Hollywood Park or Arlington, in Chicago, and [he] would fly there in order to watch [his] horses race." This was clearly personal use of the aircraft that is consistent with Plaintiffs' theory Defendants' Carl Brown and Molly Brown are the alter ego of Home Mortgage, Inc. II. CONCLUSION The requests in Defendants' Motion in Limine are completely baseless. Plaintiffs, therefore, request the Court deny in its entirety Defendants Motion in Limine. *** *** ***
-3Document 160 Filed 08/03/2007 Page 3 of 4

Case 2:03-cv-00100-ROS-MEA

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 27 28

RESPECTFULLY SUBMITTED this 3rd day of August, 2007. LAW OFFICE OF JAMES BURR SHIELDS

____s/ W. Blake Simms__________________ James Burr Shields Blake Simms Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of August, 2007, I electronically submitted 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: James M. McGee, Esq. P.O. Box 460 Cottonwood, Arizona 86326 [email protected] Attorney for Defendants ____s/ Gail Ivey___________________

Case 2:03-cv-00100-ROS-MEA

-4Document 160

Filed 08/03/2007

Page 4 of 4