Free Status Report - District Court of Arizona - Arizona

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

J. Steven Sparks (State Bar No. 0015561) SANDERS & PARKS, P.C. 3030 North Third Street, Suite 1300 Phoenix, Arizona 85012-3099 Telephone: (602) 532-5769 Fax: (602) 230-5051 [email protected] Attorneys for Defendants Glendale Union High School District No. 205 UNITED STATED DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA JOE RAMIREZ and ANA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ, Plaintiffs, vs. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X, Defendants. Pursuant to the Court's January 5, 2006 Order, undersigned counsel submits the CASE NO.: CIV03-0060 PHX-ROS

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DEFENDANTS' STATUS REPORT RE: SURVIVING CLAIMS and PROPRIETY OF PLAINTIFF'S FILING OF RAMIREZ II

following status report concerning the status of Plaintiffs' claims following the Court's Order dated July 17, 2003 and whether Plaintiffs were precluded by law from filing Ramirez II based on the Court's Order of August 10, 2004. As a preliminary matter, it should be noted that undersigned counsel is relatively new to the case and was not involved in most of the events that are at-issue. Thus, the following status report is based largely upon a review of the pleadings and this Court's orders, but it is acknowledged that the Court may have a different perception or interpretation of what has transpired to date.

Case 2:03-cv-00060-ROS

Document 92

Filed 01/19/2006

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

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Status of Plaintiffs' Claims a. Procedural History

In order to clarify the issues raised by the Court, the following is Defendants' understanding of the procedural history of this case: August 30, 2002 ­ Complaint filed by Plaintiffs Joe Ramirez and Anna Ramirez, individually and on behalf of Jose Ramirez (a mentally incapacitated adult), alleging the following claims: (1) Negligent hiring/supervision/retention; (2) Negligent supervision; (3) Violations of Title IX; and (4) Violations of 42 U.S.C. § 1983. January 24, 2003 ­ Motion to Dismiss filed by the District seeking dismissal of all claims filed by Joe Ramirez and Anna Ramirez, as individuals.1 February 4, 2003 ­ Response to Motion to Dismiss filed by Plaintiffs. February 11, 2003 ­ Reply in Support of Motion to Dismiss filed by the District. March 14, 2003 ­ Motion to Supplement Response to Motion to Dismiss filed by Plaintiffs.2 March 28, 2003 ­ Response to Motion to Supplement filed by the District.

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The Motion to Dismiss also included an argument that all claims asserted in the Complaint were abated for failure to serve the Complaint within 120 days. In their Response, Plaintiffs pointed out that they had previously (i.e., before counsel was involved) obtained an extension from the Court and that the service of process was, in fact, timely. Based upon that information, the District withdrew that portion of its Motion to Dismiss.
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In their "Motion to Supplement Response," Plaintiff argued additional bases to deny the District's Motion. Essentially, they argued that all of the § 1983 claims were 25 governed by a 2-year statute and that, therefore, those claims were timely. They also 26 attempted to argue that the statute of limitations on Joe and Anna Ramirez' claims for negligence, etc. were tolled by reason of their son's disability. As noted below, in its Order dated July 17, 2003, this Court agreed with the first argument and rejected the second. Case 2:03-cv-00060-ROS Document 922 - Filed 01/19/2006 Page 2 of 11 -

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

July 17, 2003 ­ Order from this Court, in which the following rulings were issued: (a) The § 1983 Claims were timely asserted by Joe and Anna Ramirez. individually and on behalf of Jose Ramirez, under the two-year statute of limitations of A.R.S. § 12-542 and, therefore, were not dismissed; (b) The State Law Negligence Claims asserted by Joe and Anna Ramirez, individually, relating to the alleged incident at Cortez High School were filed untimely under the applicable one-year statute of limitations and, therefore, were dismissed. (c) The State Law Negligence Claims asserted by Joe and Anna Ramirez, individually, relating to the alleged incident at Apollo High School was filed timely under the applicable one-year statute of limitations and, therefore, was not dismissed. November 10, 2003 ­ Requests for Admission served upon Plaintiffs by the District seeking, among other things, an admission that Jose Ramirez was not physically or sexually abused at Apollo High School. November 19, 2003 ­ Answers to Requests for Admission served upon the District by Plaintiffs admitting, among other things, that Jose Ramirez was not physically or sexually abused at Apollo High School. January 26, 2004 ­ Notice Regarding Discovery and Settlement filed by Plaintiff's counsel, in which he states: [Plaintiff Jose] informed its expert that he had not been assaulted at Apollo High School, but instead had become agitated when, at a student assembly, he saw that one of the perpetrators had also been transferred to Apollo. . . . February 17, 2004 ­ Joint Stipulation to Dismiss Count III of the Complaint (Title IX) filed by Plaintiffs and the District.

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Case 2:03-cv-00060-ROS

Document 923 - Filed 01/19/2006 -

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

February 27, 2004 ­ Order from this Court dismissing Count III of the Complaint (Title IX). May 24, 2004 ­ Plaintiffs filed Motion to Amend Complaint seeking to add Defendants and "failure to report" theory. August 2, 2004 ­ Plaintiffs file supplemental evidence in support of Motion to Amend Complaint. August 10, 2004 ­ Order from this Court denying Plaintiffs' Motion to Amend finding, as a matter of law, that Plaintiffs had failed to establish good cause for the proposed allegations. December 12, 2004 ­ Plaintiffs attempt to avoid this Court's Order dated August 10, 2004 by filing a separate Complaint in this District asserting the same claims that they previously sought to include in an Amended Complaint, but which were denied. (Pending as Ramirez II until this Court's Order dated January 6, 2006 when such action was consolidated with this action). January 24, 2005 ­ Motion to Dismiss filed by the District in Ramirez II. February 22, 2005 ­ Response to Motion to Dismiss filed by Plaintiffs in Ramirez II. March 10, 2005- Reply in Support of Motion to Dismiss filed by the District in Ramirez II. March 16, 2005 ­ Motion for Summary Judgment filed by the District on all remaining claims. April 25, 2005 ­ Response to Motion for Summary Judgment filed by Plaintiffs. May 17, 2005 ­ Reply in Support of Motion for Summary Judgment filed by the District. June 7, 2005 ­ Minute Entry from this Court (Honorable Virginia Mathis) denying Motion to Dismiss.

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Case 2:03-cv-00060-ROS

Document 924 - Filed 01/19/2006 -

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

September 29, 2005 ­ Motion to Consolidate Ramirez I and Ramirez II filed by the District. October 18, 2005 ­ Response to Motion to Consolidate filed by Plaintiffs. October 25, 2005 ­ Reply in Support of Motion to Consolidate filed by the District. January 6, 2006 ­ Order from this Court granting the District's Motion to Consolidate and requesting additional briefing on the pending Motion for Summary Judgment and the issue of whether Plaintiffs were precluded from filing Ramirez II in light of the Court's previous denial of the Motion to Amend. b. Discussion of Status

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Based upon the foregoing, it appears that the status of Plaintiffs' claims after the Court's July 17, 2003 Order was, as follows: 1. Parents' claims for Negligent Hiring/Supervision/Retention based on:

(a) alleged Cortez incident ­ Dismissed; and (b) alleged Apollo incident ­ Not Dismissed. 2. Parents claims for Negligent Supervision based on: (a) alleged Cortez

incident ­ Dismissed; and (b) alleged Apollo incident ­ Not Dismissed. 3. 4. Parents' claims for §1983 violations ­ Not Dismissed. Parents' claims for Title IX violations ­ Not addressed and Not

Dismissed (until later). 4. All claims on behalf of Jose Ramirez, including claims arising out of

alleged incidents at Cortez and Apollo High Schools ­ Not addressed and Not Dismissed. Following the July 17, 2003 Order, two significant events occurred that further narrowed the claims being asserted by Plaintiffs in this action. First, on February 27, 2004, this Court dismissed Count III of the Complaint and, therefore, disposed of all of the Title IX claims. Second, on November 19, 2003 and January 26, 2004, Plaintiffs
Case 2:03-cv-00060-ROS Document 925 - Filed 01/19/2006 Page 5 of 11

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

and their counsel admitted under oath that Jose Ramirez was never sexually or physically abused at Apollo High School. Following these admissions, the District anticipated that Plaintiffs would amend their Complaint to withdraw all claims related to Apollo High School. Upon review of the file materials, it appears that no amended Complaint was ever filed. Notwithstanding this fact, the parties have understood and agreed that: (a) Jose Ramirez was not assaulted at Apollo High School; (b) the allegations of the Complaint on that subject are simply erroneous; and (c) no discovery needed to be conducted on that issue. Insofar as Plaintiffs had already conceded that there was no basis for any claim arising out of Jose Ramirez's attendance at Apollo High School, neither party engaged in any discovery on that point. Based upon these facts, the District believes that the Apollo claims are, for all intents and purposes, no longer part of this case. Defendant's Motion for Summary Judgment is directed at all of the remaining claims, which the District believes are: (1) Plaintiff Jose Ramirez' claim for negligent hiring/supervision/retention at Cortez; (2) Plaintiff Jose Ramirez' claim for negligent supervision at Cortez; and (3) All of Plaintiffs' claims under § 1983. To the extent the Court believes it is necessary, Defendant will file a Supplemental Motion for Summary Judgment addressing only the claims stemming from the incident at Apollo, which was originally alleged, but which was later withdrawn. Otherwise, Defendant believes that this case is ripe for summary judgment for the following reasons: (a) Plaintiffs have never disclosed any expert testimony to support their state law claims and such expert testimony is required by law. See, e.g., Maricopa County v. Cowart, 106 Ariz. 69, 471 P.2d 265 (1970)(because of the special circumstances involved in supervising special needs students, expert testimony is required on the issue of whether supervision was adequate); Gingeleskie v. Westin

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Case 2:03-cv-00060-ROS

Document 926 - Filed 01/19/2006 -

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Hotel Co., 961 F.Supp. 1310, 1320 (D.Ariz. 1997)3; and (b) Plaintiffs have failed to provide even a shred of evidence that the District maintained an official policy that infringed on their rights, as required by § 1983.4 Simply put, Plaintiffs have not produced evidence to establish that they can go forward to trial. Therefore, Defendants believe that summary judgment is warranted as a matter of law. 2. Plaintiffs Were Precluded from Filing Ramirez II based upon this Court's Order Dated August 10, 2004 and Sanctions are Warranted. On May 20, 2004, Plaintiffs moved this Court for an Order allowing them to

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amend their Complaint to include claims against individual teachers and administrators
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based upon their alleged failure to report the alleged assault of Plaintiff Jose Ramirez.
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Finding that the Motion was based essentially upon the unsupported hearsay statements
LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

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of Plaintiff's counsel, the Court allowed Plaintiffs an additional opportunity to support
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their Motion with specific citations to deposition testimony.
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On July 28, 2005,

Plaintiffs filed a Supplemental Motion to Amend, citing to specific evidence in support of its position. On August 10, 2004, this Court denied Plaintiffs' Motion to Amend. In doing so, the Court found that the Plaintiffs failed to satisfy the "good cause" requirement of Rule 16(b), Federal Rules of Civil Procedure and ordered that Plaintiffs could not amend their Complaint to include such claims. Notwithstanding the Court's Order, Plaintiffs did an "end around" and filed a separate action alleging the exact same claims against the exact same defendants that were the subject of the previously-rejected Motion to Amend. This case is known as

In their Response, Plaintiffs essentially ignored this fundamental issue and did not even attempt to distinguish these cases. They simply attempted to cloud the issues by throwing irrelevant facts at the Court in the hope that it would create the illusion of a "question of fact." The reality is that, unless Plaintiffs can produce expert testimony at trial regarding the supervision required for these special education students, they cannot go forward with their claims. No such expert disclosure was provided and, thus, the District is entitled to summary judgment as a matter of law. In their Response, Plaintiffs completely ignored this issue and did not even attempt to address the cases cited in Defendants' Motion. Accordingly, summary judgment is warranted as a matter of law. Case 2:03-cv-00060-ROS Document 927 - Filed 01/19/2006 Page 7 of 11 4

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

Ramirez II. Plaintiffs' attempt to circumvent the Honorable Roslyn O. Silver's ruling constituted a gross misuse of judicial resources, lack of candor to the court, the potential for inconsistent rulings and prejudice to Defendants by forcing them to defend two separate lawsuits on the exact same issues. In Ramirez II, the District filed a Motion to Dismiss arguing that the claims were barred by principles of res judicata and cited cases for the proposition that the denial of a motion to amend is widely considered to be a ruling on the merits for purposes of res judicata. Although the District's Motion was denied in Ramirez II, the District feels it would be appropriate for this Court to consider whether Plaintiffs were precluded from filing Ramirez II in the first instance. Many jurisdictions have concluded that the denial of a motion to amend has a res judicata effect on the filing of subsequent complaint to initiate a new lawsuit. See, e.g., Huck v. Dawson, 106 F.3d 45, 50, (3rd Cir. 1997); Johnson v. SCA Disposal Serv. Of New England, Inc., 931 F.2d 970, 976 (1st Cir. 1991); Nilsen v. City of Moss Point, Mississippi, 701 F.2d 556 (5th Cir. 1983); and Poe v. John Deere Co., 695 F.2d 1103 (8th Cir. 1982). This Court should do the same, particularly inasmuch as Plaintiffs have cited no authority to the contrary. In this case, Plaintiffs blatantly disregarded this Court's ruling on the Motion to Dismiss and attempted an improper end-run by filing a separate lawsuit. All of the claims contained in the separate lawsuit (which are now consolidated with this lawsuit) are barred as a matter of law by the principles of res judicata. This Court has already ruled that Plaintiffs cannot make a good faith showing that they could prevail on the "failure to report" claims and, as such, they should not be able to assert them now.5

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For a complete discussion of these issues, Defendant refers this Court to its Motion to Dismiss, which was filed in Ramirez II (CIV04-2908 PHX-VAM) and the accompanying Response and Reply. Such pleadings are incorporated herein for all intents and purposes. Case 2:03-cv-00060-ROS Document 928 - Filed 01/19/2006 Page 8 of 11 -

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

Defendants feel strongly that Plaintiffs and their attorney should be sanctioned under 28 U.S.C. § 1927 for their willful disregard of this Court's Order by filing a subsequent lawsuit alleging the exact same claims as were already deemed improper. Under 28 U.S.C. § 1927, "any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorneys' fees reasonably incurred because of such conduct." In this case, Plaintiffs and their attorney knew that this Court had already found a lack of good cause to assert the "failure to report" claims against the individual teachers and administrators. Yet, they disregarded that Order and tried to "judge shop" in order to get the ruling they wanted. Such behavior is improper and forced Defendant to incur significant expense, including attorneys' fees and costs. Such fees and costs are

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recoverable as sanctions under these circumstances. See, e.g., Chambers v. NASCO, Inc. 501 U.S. 32, 46 (1991); Salstrom v. Citicorp Credit Svcs., 74 F.3d 183, 185 (9th Cir. 1996); and Fink v. Gomez, 239 F.3d 989, 992-93 (9th Cir. 2001). In In re Itel Sec. Litig. v. Itel, 791 F.2d 672 (9th Cir. 1986), counsel filed objections to exact fee concessions in an action pending before another court. According to the Ninth Circuit, the objections were not frivolous, nor were they submitted with any knowledge that they were unmeritorious. But counsel's goal was to gain an advantage in the other case, which the court concluded was "sufficient to support a finding of bad faith." Id. at 675. "For purposes of imposing sanctions under the inherent power of the court, a finding of bad faith 'does not require that the legal and factual basis for the action prove totally frivolous; where a litigant is substantially motivated by vindictiveness, obduracy, or mala fides, the assertion of a colorable claim will not bar the assessment of attorney's fees.' " Id. (quoting Lipsig v. National Student Mktg. Corp., 214 U.S. App. D.C. 1, 663 F.2d 178, 182 (D.C. Cir. 1980)).
Case 2:03-cv-00060-ROS Document 929 - Filed 01/19/2006 Page 9 of 11

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

As in the Itel matter cited above, the Plaintiffs and their attorney in this case have attempted to gain an improper advantage. Here, the only reason that Plaintiffs and Mr. Fitzhugh filed Ramirez II was to gain the tactical advantage of being able to assert the allegations that this Court already deemed to be insufficient to warrant amendment of the Complaint. When Plaintiffs and their counsel realized that the Honorable Roslyn O. Silver was not going to allow them to bring certain claims, they simply filed another Complaint knowing that the case would likely be assigned to a different Judge. This conduct cannot be condoned and, in fact, should be sanctioned under the power of this Court. Under 28 U.S.C. § 1927 and the cases cited above, this Court should: (a) dismiss all claims which were improperly brought; and (b) impose sanctions on Plaintiffs and their attorney, Edward Fitzhugh, in the amount of the fees and costs that Defendants were required to incur in connection with the claims asserted in Ramirez II. RESPECTFULLY submitted this 19th day of January, 2006. SANDERS & PARKS, P.C. By: /s/ J. Steven Sparks J. Steven Sparks 3030 N. Third Street, Suite 1300 Phoenix, AZ 85012-3099 Attorneys for Defendants Glendale Union High School District No. 205 I hereby certify that on January 19, 2006, I electronically Transmitted the foregoing document To the Clerk's office using the CM/ECF System for filing and Transmittal of a Notice of Electronic Filing to the following EM/ECF Registrants: [email protected] Attorney for Plaintiffs

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Case 2:03-cv-00060-ROS

Document 9210 - Filed 01/19/2006 -

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LAW OFFICES SANDERS & PARKS, P.C. 1300 ABACUS TOWERS 3030 NORTH THIRD STREET PHOENIX, ARIZONA 85012-3099 TELEPHONE (602) 532-5600 FACSIMILE (602) 532-5700

COPY to be hand-delivered on the 19th day of January 2006 to: Honorable Roslyn O. Silver District Court of Arizona 230 N. First Avenue Phoenix, Arizona 85025 /s/ J. Steven Sparks' ______________________________

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Case 2:03-cv-00060-ROS

Document 9211 - Filed 01/19/2006 -

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