Free Order - District Court of Arizona - Arizona

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Case 2:03-cv-00060-ROS Document 126 Filed 04/19/2006 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JOE RAMIREZ and ANA RAMIREZ,) Individually and as Parents and Legal) ) Guardians of JOSE RAMIREZ, ) ) Plaintiff, ) ) vs. ) ) GLENDALE UNION HIGH SCHOOL) DISTRICT No. 205; JOHN DOE and) JANE DOE I-X; ABC CORPORATIONS) ) I-X; and XYZ PARTNERSHIPS I-X, ) ) Defendant.

No. CV 03-0060-PHX-ROS ORDER

On March 8, 2005, a hearing was held regarding the parties' discovery dispute. The Court's ruling and reasons are addressed below.

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I.

Status of Claims There appears to be some confusion over what claims remain.1 In its dismissal order

of July 17, 2003 (Doc. #15) the Court dismissed the parents' claims for loss of filial consortium under state law negligence as being time barred pursuant to A.R.S. § 12-821.2 Defendant Glendale Union High School District ("Defendant") did not raise in its Motion To Dismiss, and the Court did not address, whether Plaintiff Jose's state law negligence claims were similarly barred. However, the Court noted that Plaintiff Jose's state law claims may be tolled pursuant to A.R.S. § 12-502 upon a showing that he was of unsound mind when the action accrued.3 See July 17, 2003 Order p. 7 fn. 5. Thus, the only claims dismissed by the July 17, 2003 Order were the parents' state law claims. Following this Order, Plaintiffs dismissed the Title IX claims and the additional claims as they relate to any incident occurring at Apollo. In its status report of January 20, 2006 (Doc. #95), Plaintiffs state that "[w]ith regard to any claim against Apollo High School, the parties previously agreed that the Apollo claim would be dismissed." Plaintiff's Status Report p. 2. However, Plaintiffs never notified the Court of their intent to dismiss these claims or limit the existing claims to injuries arising from the Cortez incident. Indeed, the

On August 30, 2002, Plaintiffs Joe Ramirez and Anna Ramirez, individually and on behalf of Jose Ramirez (a mentally incapacitated adult) (hereinafter "Plaintiff Jose") as Jose's parents, 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. The claims arise out of two incidents that allegedly occurred while Plaintiff Jose was a student at Apollo and Cortez schools, both of which are within Glendale Union High School District No. 205. A.R.S. § 12-821 provides that "[a]ll actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." A.R.S. § 12-502 provides that "[i]f a person entitled to bring an action . . . . is at the time the cause of action accrues either under eighteen years of age or of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action. Such person shall have the same time after removal of the disability which is allowed to others." -2Case 2:03-cv-00060-ROS Document 126 Filed 04/19/2006 Page 2 of 6
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confusion was apparent given the Court's January 6, 2006 Order requiring both parties to apprise the Court on the surviving claims. Given the representations by both counsel, it is now clear that the Apollo claims no longer exist. As a result, the Court will construe Defendant's First Motion For Summary Judgment with this in mind and deny as moot the Second Motion For Summary Judgment relating only to the Apollo claims. Thus, the only remaining claims are Jose's state law negligence claims and both Jose's and his parents' § 1983 claim.4 II. Discovery Dispute Plaintiffs seek to compel the production of certain notes written by Annie Preston that Defendant contends do not exist. Plaintiffs rely on certain statements made by Ms. Preston which they construe to mean that handwritten notes were made. Defendant claims that the only existing notes are the typewritten ones already produced, and that Ms. Preston subsequently testified that she did not recall whether handwritten notes were made. In light of Ms. Preston's subsequent testimony, the Court finds that her initial statements are not conclusive evidence that handwritten notes were made. The Court ordered Defendant to provide an affidavit by Ms. Preston within seven days certifying that no notes, either handwritten or otherwise, exist other than those already produced. The second issue involves the testimony of Dominic Guzman, an instructional aide who allegedly voluntarily left the school district to work elsewhere. Due to Defendant's late disclosure of Mr. Guzman's whereabouts, Plaintiffs have been unable, until recently, to locate Mr. Guzman. On February 21, 2006 pursuant to stipulation by both parties, the Court extended the discovery deadline until March 20, 2006 to allow Plaintiffs to depose Mr. Guzman (Doc. #107). Plaintiffs located Mr. Guzman and noticed his deposition for March

In its Order of July 17, 2003, the Court noted that because the Defendant failed to attach the last page of Plaintiffs' Complaint upon removal, it remains unclear whether or not Plaintiffs Joe and Ana pled a loss of consortium claim under § 1983. However, because both parties acknowledge in their status reports that the claim exists, the Court will assume that it does. -3Case 2:03-cv-00060-ROS Document 126 Filed 04/19/2006 Page 3 of 6

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1, 2006 but had to cancel it upon learning that Mr. Guzman had been arrested. Plaintiffs now seek to extend the deadline again to depose Mr. Guzman, which they are prepared to do on March 23, 2006 and have asked the Court to defer ruling on the pending Motions For Summary Judgment until after Mr. Guzman's deposition (Doc. #108). At the discovery dispute hearing, the Court held that based upon the arguments made in Defendant's pending Motion For Summary Judgment it appeared that Plaintiffs should defer taking Mr. Guzman's deposition until after the Court rules on that Motion. The issues before the Court on summary judgment are legal rather than factual, that is (1) whether the Plaintiff must use expert witness testimony regarding what the District's standard of care is, and whether the District fell below it; and (2) whether the District, as an entity through its employees and officials, had an official policy that infringed on the constitutional rights of the Plaintiffs pursuant to § 1983. See Defendant's Motion For Summary Judgment (Doc. #75). With regard to the state law and § 1983 claims, it appears as if there is nothing about which Mr. Guzman could testify that would affect these purely legal issues, because Mr. Guzman is not an expert witness and not in a position to have established the official policy of the District.5 As a precautionary measure, however, the Court stated that it would allow Plaintiffs to proffer what they believe Mr. Guzman will testify to that will defeat the Motion For Summary Judgment, either on the legal issues or because Plaintiffs believe that his testimony would create material issues of fact disputing Defendant's position on the legal issues. The Court made clear that any proffer made by the Plaintiffs of Mr. Guzman's testimony would

In Plaintiffs' response to Defendant's Motion For Summary Judgment, Plaintiffs do not challenge Defendant's assertion of the standard governing claims brought under § 1983, which is limited to deprivations of federally protected rights caused by actions taken pursuant to official policy. See Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691 (1978). "[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997). -4Case 2:03-cv-00060-ROS Document 126 Filed 04/19/2006 Page 4 of 6

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be taken as true. At the discovery hearing the Court neglected to set a date for the Plaintiffs to proffer Mr. Guzman's testimony, or to state why they cannot proffer such testimony, to legally and factually defeat Defendant's Motion For Summary Judgment. III. Sanctions In its Order of January 6, 2006 (Doc. #95) consolidating both the present case and Ramirez v. Glendale Union High School Dist. No. 205, et al., CV 04-2908 ("Ramirez II"), the Court ordered both parties to address whether or not Plaintiff were precluded from filing Ramirez II in light of the Court's order of August 10, 2004 denying Plaintiffs' Motion to Amend (Doc. #61), and if so, whether Mr. Fitzhugh should be sanctioned pursuant to Rule 11 and 28 U.S.C. § 1927.6 See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991); Salstrom v. Citicorp Credit Servs., 74 F.3d 183, 185 (9th Cir. 1996); Fink v. Gomez, 239 F.3d 989, 992-93 (9th Cir. 2001). At the discovery dispute hearing, the Court informed Mr. Fitzhugh that it was unsatisfied with his response thus far, and ordered him to show cause why sanctions should not ensue. The date for the show cause hearing will be vacated until final resolution of this case.

Accordingly, IT IS ORDERED that Defendants shall provide Plaintiffs with an affidavit by Ms. Preston within seven days of this Order certifying that no notes, either handwritten or otherwise, exist other than those already produced. IT IS FURTHER ORDERED that Plaintiffs' Motion For Extension Of Time (Doc. #108) is DENIED, in part. Plaintiffs shall submit a proffer to the Court within seven days

28 U.S.C. § 1927 provides that "[a]ny 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." -5Case 2:03-cv-00060-ROS Document 126 Filed 04/19/2006 Page 5 of 6

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of this Order of Mr. Guzman's anticipated testimony that would legally defeat Defendant's Motion For Summary Judgment, or state why they cannot proffer such testimony. IT IS FURTHER ORDERED that after the Court has received Plaintiffs' proffer of Mr. Guzman's testimony, the Court will determine whether a Response from Defendant is merited and whether oral argument is necessary. IT IS FURTHER ORDERED that the show cause order for sanctions against Mr. Fitzhugh is VACATED until resolution of the underlying cause of action. Mr. Fitzhugh shall provide by May 19, 2006, any supplemental material in his defense. IT IS FURTHER ORDERED that Defendant's Second Motion For Summary Judgment (Doc. #93) is DENIED as moot.

DATED this 18th day of April, 2006.

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