Free Response - 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. 015561) 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, TANYA SOTO, STEVE SOTO, ANNIE PRESTON, KEITH PRESTON, CLAY KLAVITTER and JILL KLAVITTER UNITED STATED DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

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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. __________________________________ JOE RAMIREZ and ANA RAMIREZ, Individually and as Parents and Legal Guardians of JOSE RAMIREZ, Plaintiffs, vs. GLENDALE UNION HIGH SCHOOL DISTRICT NO. 205; TANYA SOTO and
Document 127

) CASE NO.: CIV03-0060 PHX-ROS ) ) ) DEFENDANTS' RESPONSE TO ) PLAINTIFFS' REQUEST FOR ) RECUSAL ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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JOHN DOE SOTO; ANNIE PRESTON and JOHN DOE PRESTON; CLAY KLAVITTER and JANE DOE KLAVITTER; JOHN DOE AND JANE DOE I-X; ABC CORPORATIONS I-X; and XYZ PARTNERSHIPS I-X,

) ) ) ) ) ) ) Defendants. ) ___________________________________ ) Defendants, by and through counsel undersigned, submit the following

memorandum in response to Plaintiffs' Request for Recusal, which pursuant to this
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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

Court's Order dated April 14, 2006, is to be treated as a Motion for Recusal. Defendants first note that much of Plaintiffs' Request for Recusal is, in reality, an attempt to explain why Plaintiffs and their counsel should not be sanctioned for their behavior in this litigation. For example, Plaintiffs argue that they had no choice but to

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file Ramirez II because the Court's ruling on the Motion to Amend was not a final, appealable order and because the statute of limitations was not tolled. Plaintiffs spend multiple pages trying to convince this Court that they were in an "untenable situation," which required them to file Ramirez II. This attempt to excuse their conduct in filing Ramirez II may be relevant to the currently pending Order to Show Cause, but it has absolutely nothing to do with whether the Honorable Roslyn O. Silver is required to recuse herself from this case. Defendants oppose and disagree with Plaintiffs' Request/Motion for Recusal on the basis that: (a) it is based upon inaccurate factual and legal recitations; and (b) recusal is not appropriate under existing caselaw.

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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

a. Plaintiffs' Request for Recusal is Based Upon Inaccurate and Irrelevant Facts and Law. Plaintiffs' Request for Recusal is filled with grossly misstated recitations of the "facts" underlying this matter. Moreover, the "facts" cited in Plaintiffs' Motion are completely irrelevant to the only issue presented in this Motion ­ whether the Honorable Roslyn O. Silver must recuse herself from this case. Plaintiffs' factual allegations have evolved throughout the litigation, but none of the allegations has ever been based upon legitimate, trustworthy evidence. For

example, despite Plaintiffs' counsel's assertions that the alleged attackers admitted that they sexually assaulted Jose, the police officer who investigated the incident concluded that: There is no evidence or statements that a sexual assault has taken place. ... This report will be closed and remain on file due to the lack of evidence or independent witnesses to support the allegation Jose was sexually assaulted. In their Request for Recusal (as in their earlier unsuccessful Motion to Amend), Plaintiffs claim that "Ruben Ortega reaffirmed the content of the police report, that is,

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that Jose had been physically and sexually assaulted in the locker room of the gym . . ." (Request for Recusal at P.2, L.27). This is only partially accurate. While it is true that Ruben Ortega reaffirmed the police report, it is patently false to suggest that the police report found any validity to the claims of assault. Indeed, the police report found no

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evidence of a sexual assault. Plaintiffs' Request for Recusal also suggests that the "Court declined to sanction Defendants for deliberately withholding the location of the witnesses." This, again, is
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not entirely accurate. It is true that the Court declined to sanction Defendants, but it is untrue that Defendants ever withheld the location of witnesses. In fact, because

Defendants did not deliberately withhold the location of witnesses and because the
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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

Court found that all of the relevant witnesses had been properly disclosed, the Court denied Plaintiffs' Motion for Sanctions. In its Order dated July 19, 2004, the Court stated: . . .Plaintiffs' Motion for Sanctions is not well-taken based upon the facts before the Court. There is nothing in the record to substantiate Plaintiffs' allegation that the Defendants or their counsel declared that Angel Sanchez was no longer in the Defendants' school system. To the contrary, the uncontroverted record shows that Defendants advised Plaintiffs [in their Initial Rule 26 Disclosure Statement and in subsequent correspondence between counsel] that Angel Sanchez was the single alleged assailant or witness that had remained in the school systems. (Emphasis added). Thus, in light of the Court's findings that Defendants fully complied with their disclosure obligations, it is disingenuous and improper for Plaintiffs' counsel to resurrect the argument that "Defendants, throughout all the hearings before this Court, had consistently claimed to have no information at all about his whereabouts." (Request for Recusal at P. 2, L.22). The reality is that Defendants did not "claim to

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have no information" about Angel Sanchez's location, but affirmatively and timely disclosed the fact that "Angel Sanchez is attending Cortez High School." Plaintiffs also misstate the law in their Request for Recusal when they state that "the Court inappropriately weighed the content of Ruben Ortega's testimony, and his credibility" when denying Plaintiffs' Motion to Amend. It is well settled that courts may consider multiple factors in determining whether to grant a motion to amend. For

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example, a court may consider whether the proposed amendment is in bad faith, whether it would result in undue delay, whether it would cause prejudice to the opposing party, whether the amendment would be futile, and whether the party has

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previously amended his pleadings. See, e.g., Western Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991), cert. denied, 121 L. Ed. 2d 39, 113 S. Ct. 74 (1992). However, the Ninth Circuit Court of Appeals has found that each factor is not to

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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

be given equal weight: "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995); Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). In Outdoor Systems v. City of Mesa, 997 F.2d 607, 614, the Ninth Circuit affirmed the district court's denial of a motion for

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leave to amend because the proffered amendments would be nothing more than an exercise in futility. Additionally, the Ninth Circuit has held that a district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories. Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990). A court need not grant leave to amend where such an amendment would be futile because it would be subject to a motion to dismiss or a motion for summary judgment. Unispec Development v. Harwood K. Smith & Partners, 124 F.R.D. 211, 214 (D. Ariz. 1988). Where there is a claim that the amendment would be futile, the court must look to the merits of the proposed amendment. Id. Thus, contrary to Plaintiffs' suggestion, it was certainly within this Court's authority to consider the merits of the proposed

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amendment when ruling upon Plaintiffs' Motion to Amend. In this case, the Court properly found that the proposed amendment suggested by Plaintiffs was futile given the "evidence" that was submitted at that time (i.e., the

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internally and wildly inconsistent testimony of a mentally retarded student who was asked leading questions by Plaintiffs' lawyer throughout the deposition). Like the plaintiff in Allen, supra, the Plaintiffs here effectively submitted no new facts, but only new legal theories. The deposition testimony of Ruben Ortega ­ when considered as a

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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

whole ­ had absolutely no probative value on the proposed amendment to include new legal theories. The Court's denial of the Motion to Amend was proper given the fact that there was no competent evidence submitted in support of that Motion. Notwithstanding the gross exaggerations and misstatements of the true facts and

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law, it is essential to recognize that none of these issues has any bearing on the issue presented here ­ whether recusal is appropriate. Rather, they are intended to distract the Court from the very simple issue that is being considered through Plaintiffs' Motion. Defendants would submit that recusal is neither appropriate nor necessary. b. Recusal is Not Appropriate Under Current Caselaw In Liteky v. United States, 510 U.S. 540, 554, 127 L.Ed.2d 474, 114 S.Ct. 1147 (1994), the United States Supreme Court set the standard for recusal of presiding judges and held that the "extrajudicial source" doctrine applies to recusal motions. That is: Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . .Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or
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antagonism that would make fair judgment impossible. Id. at 555. The courts have made it clear that arguments like those raised by the Plaintiffs

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here do not constitute valid grounds for recusal. In In re Darrel D. Smith v. Edwards & Hale, 317 F.3d 918 (9th Cir. 2002), the Ninth Circuit Court of Appeals rejected a plaintiffs' argument that the trial judge had "prejudged" the evidence and was biased and partial. In so finding, the Ninth Circuit stated:

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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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The main thrust of Smith's argument seems to be that Judge Jones made up his mind early and did not change it in the face of subsequent hearings and other proceedings. This is not a ground for recusal. Even if Judge Jones clung to his opinion, a little stubbornness is not ordinarily grounds for disqualification. Thus, the district court did not err in affirming Judge Jones' denial of Smith's motion to recuse. Id. Here, Plaintiffs are essentially claiming that they do not like this Court's rulings in this case and that Judge Silver has "prejudged" the evidence before ruling on pending motions. Under Liteky and Smith, this is legally insufficient to establish grounds for recusal. As the Supreme Court in Liteky put it, "The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task." Id. at 550.

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In this case, Defendants believe that the Court's rulings have been well-founded and that the Court has shown no particular ill-will toward the Plaintiffs or their attorneys at any time. Plaintiffs may argue that the Court's decision to consider sanctions on

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Plaintiffs and their counsel, as well as some of the remarks by the Court on that subject, indicate judicial bias or hostility justifying recusal. This, however, is not the law. "Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or

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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

partiality challenge." Id. at 555. In this case, the Court has acted appropriately toward the parties. Any comments that were perceived to be critical of Plaintiffs' counsel for his willful disregard of this Court's previous order were, in Defendants' view, well deserved. Plaintiffs and their

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counsel wasted judicial resources and attempted to evade this Court's ruling by filing Ramirez II. The mere fact that the Court may have expressed its displeasure with counsel's gamesmanship does not suggest that recusal is appropriate or necessary. Indeed, the caselaw is directly to the contrary. / / / / / / / / /

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In summary, the fact that Plaintiffs' Motion to Amend was correctly denied ­ on grounds of futility ­ is not a sign of bias or prejudice. The fact that the Court correctly deferred1 consideration of ­ but did not reject out-of-hand ­ Plaintiffs' desire to take Dominic Guzman's untimely deposition is not sufficient to warrant disqualification. Finally, the Court's understandable displeasure with Plaintiffs' decision to ignore an Order of the United States District Court from this case does not justify recusal, as a matter of law.

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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 respectfully request that this Court deny Plaintiffs' Request for Recusal on the grounds set forth above. RESPECTFULLY submitted this 21st day of April, 2006. SANDERS & PARKS, P.C.

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By: s/J. Steven Sparks J. Steven Sparks 3030 N. Third Street, Suite 1300 Phoenix, Arizona 85012-3099 Attorneys for Defendants

In their Request for Recusal, Plaintiffs misstate the facts when they claim that "the Court then, sua sponte, cancelled Mr. Guzman's deposition." In reality, the Court 21 merely indicated that it would defer judgment of whether Plaintiffs could take Mr. Guzman's untimely deposition until after the pending motion for summary judgment 22 was ruled upon. The Court correctly explained that the testimony of Dominic Guzman (a former teachers' aide for the District) would have no bearing on the issue presented 23 in the motion for summary judgment ­ i.e., whether Plaintiffs can present their claims without expert testimony on the applicable standard of care. In the interest of judicial 24 economy and in light of the fact that Mr. Guzman's testimony is irrelevant and immaterial to the pending issues, the Court deferred consideration of Plaintiffs' right to 25 take the deposition until the motion is resolved. However, to ensure that Plaintiffs were treated fairly and that Plaintiffs had every opportunity to present evidence that they 26 perceived to be relevant, the Court allowed Plaintiffs the opportunity to proffer Mr. Guzman's anticipated testimony for purposes of the motion for summary judgment. Thus, Plaintiffs' suggestion that the Court's "personal anger with Plaintiffs' counsel has affected the right of Plaintiffs to have a fair proceeding" is misguided and incorrect. Case 2:03-cv-00060-ROS Document 127 - Filed 04/21/2006 Page 9 of 10 -9
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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

I hereby certify that on April 21, 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] Attorneys for Plaintiffs To be hand-delivered as a courtesy hard copy on April 24, 2006, to the Honorable Roslyn O. Silver. s/ J. Steven Sparks

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