Free Memorandum - District Court of Arizona - Arizona

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EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285-4238 (480) 752-2200 Bar No. 007138 Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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vs. Joe Ramirez and Ana Ramirez, Individually and as Parents and Legal Guardians of Jose Ramirez; Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV03-0060 PHX-ROS

MEMORANDUM RE: ORDER TO SHOW CAUSE HEARING

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Glendale Union High School District No. 205; John Doe and Jane Doe I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Defendants.

(Assigned to the Honorable Roslyn O. Silver)

COME NOW Plaintiffs and, as ordered by this Court on March 8, 2006, submit a

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Memorandum Re: Order to Show Cause Hearing.

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Based upon the Court's discussion at the hearing on March 8, 2006, the Order to

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Show Cause hearing is scheduled to impose sanctions on Plaintiffs and/or Plaintiffs'

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counsel for filing the separate Ramirez v. Soto action (CV04-002908).

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This Court considers the filing of Ramirez v. Soto, after the Court's earlier denial of

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a Motion to Amend Complaint in this action, to be a deliberate end-run around the Court's

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ruling.

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Counsel for Plaintiffs did not make an end-run around this Court, but had no

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alternative to protect his clients' interests except to file the second cause of action.

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As the Court is most certainly aware, Plaintiffs respectfully disagreed with this

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Court's ruling on Plaintiffs' Motion to Amend the Complaint, and contend that the refusal

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to permit the Complaint to be amended violated the rule and the spirit of Rule 15, ARCP.

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The basis of the Court's ruling, that is, weighing the substance and credibility of a witness' testimony, went beyond the authority of the Court on such matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed. 2d 202, 4 Fed R. Serv 3d 1041 (1986). After that ruling, Plaintiffs' counsel was simply left with no alternative other than to file a separate lawsuit. This Court's denial of the Motion to Amend was not in the form of a final, appealable Order, and the statute of limitations on the new, distinct claims was not tolled, necessitating an alternative course. After the second lawsuit was filed, defense counsel promptly filed a Motion to Dismiss, citing as his only basis for dismissal this Court's ruling on the Motion to Amend. Ramirez v. Soto was assigned to the Hon. Virginia Mathis, who specifically reviewed the ruling made by this Court in its decision on the Motion to Amend the Complaint. (See, Exhibit 1, transcript of June 7, 2005, hearing on Soto v. Ramirez, CV04-2908, before the Honorable Virginia A. Mathis). Judge Mathis heard Plaintiffs' counsel's reasons for filing the second lawsuit, commented specifically that this Court had inexplicably "prejudg[ed] [the] evidence" in its ruling (Exhibit 1, page 8, lines 20-21). During the discussion with the Court, Judge Mathis did not cite any legal obstacle that would have prevented amending the original Complaint. Based on this Court's ruling on the Motion to Amend, Judge Mathis denied Defendants' Motion to Dismiss outright, acknowledging not only the peculiar ruling on the Motion to Amend, but also the untenable situation in which Plaintiffs' counsel found himself. (Exhibit 1, page 11, lines 1-2). Discussion was held on the record regarding the lack of Rule 54(b) language in this Court's written Order, precluding an immediate appeal by Plaintiffs. (Exhibit 1, page 11, lines 9-23). Such language would have given Plaintiffs an avenue to avoid the running of the statue of limitations.

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Judge Mathis also refused to transfer Ramirez v. Soto to this Court, recognizing that this Court had the lower numbered case and the ultimate authority to consolidate the cases. (Exhibit 1, page 12, lines 1-3). This Court did choose to consolidate the cases.

The claims contained in the Ramirez v. Soto action came to light during discovery, and include claims for damages caused by the individual school personnel's failure to report the physical and sexual assault of Jose Ramirez when they discovered it. The Ramirez v. Soto case contains claims against individual school personnel not named in the original action. Simply put, without the separate Ramirez v. Soto filing, Plaintiffs would have lost the right to pursue the newly-discovered claims. This Court has made it clear that sanctions will be imposed. However, Plaintiffs respectfully request that, before imposing sanctions, the Court review the Court's file regarding the discovery disputes in this matter. The new claims discovered in this matter were made by Plaintiffs in spite of the bad-faith, foot-dragging non-disclosure from Defendant Glendale Union High School District, that is, deliberately withholding information about Jose's three attackers. After the perpetrators were finally produced for depositions, it was clear that the Defendants knew about the assault for six months before Mr. and Mrs. Ramirez found out about it. Without Plaintiffs' Ramirez v. Soto filing, those claims are lost and those individual school employees never have to answer for failing to report the assault and allowing a mentally handicapped student to endure six months of torment. ... ... ...

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This Court has never considered the position in which it placed Plaintiffs and Plaintiffs' counsel by its refusal to allow the amendment of the Complaint. Nor has the Court considered the egregious conduct of the individual Defendants in the second lawsuit. Instead, the Court focuses on the filing of the second lawsuit, which was procedurally and substantively permitted. RESPECTFULLY SUBMITTED this 31st day of March, 2006.

/s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

16 I hereby certify that on March 31, 2006, I electronically 17 transmitted the foregoing to the Clerk's Office using the CM/ECF 18 System for filing and transmittal of a Notice of Electronic Filing 19 to the following CM/ECF registrants: 20 J. Steven Sparks, Esq. Sanders & Parks, P.C. 21 3030 N. Third Street, Ste. 1300 Phoenix, Arizona 85012-3099 22 Attorneys for Defendants 23
___/s/S.J. Odneal____

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