Free Response in Opposition to Motion - District Court of Arizona - Arizona

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SABINUS A. MEGWA, ESQ. The Megwa Law Office 6811 South Central Avenue Phoenix, Arizona 85042 State Bar Number: 011266 Telephone (602) 243-6151 E-mail: [email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Nicholas Alozie, a single man,

) NO. CIV'02 2639 PHX SRB ) ) Plaintiff, ) PLAINTIFF NICHOLAS ALOZIE'S ) RESPONSE TO DEFENDANTS' RENEWED vs. ) MOTION FOR JUDGMENT AS A MATTER ) ) OF LAW ON PUNITIVE DAMAGES AND The Mills Corporation, a foreign corporation; ) MOTION FOR NEW TRIAL, TO AMEND MillsServices Corp., a foreign corporation; and ) THE JUDGMENT OR REMITTITUR, ON ) PUNITIVE DAMAGES Arizona Mills, L.L.C., a foreign corporation, ) ) Defendants, ) (Before The Honorable Susan R. Bolton) ) ) ) Plaintiff, Nicholas Alozie, by and through counsel undersigned, hereby responds and opposes Defendants' Renewed Motion for Judgment As a Matter of Law on Punitive Damages and Motion for New Trial, to Amend the Judgment or Remittitur on Punitive Damages and Plaintiff requests that Defendants' Motion be denied. This opposition and response to Defendants' Motion is supported by the attached Memorandum of Points and Authorities, Plaintiff's prior response to Defendant's Motion for Judgment as a Matter of Law on Punitive Damages, Response to Defendants' Motion in Limine Re: Punitive Damages, the trial testimony in this matter, the exhibits admitted at the trial of this case and the entire record of this case.

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MEMORANDUM OF POINTS AND AUTHORITIES I. The Weight of the Evidence Supports an Award of Punitive Damages Under §§1981 and 1982.

To prevail on his claim for punitive damages, Plaintiff had the burden of proof that Defendants acted with malice or with reckless indifference to Plaintiff's federally protected rights. See Kolstad v. American Dental Ass'n., 527 U.S. 526, 534, 119 S. Ct. 218, 2124, 144 L.Ed.2d 494 (1999). The jury did in fact find that Defendants intentionally discriminated against Plaintiff because of his race and or national origin in violation of 42 U.S.C. §1981 and §1982. The jury also found that

10 11 12 13 14 15 16 17 18 19 20 21 22 23 damages, however it is likely that they were unable to do so because they were not able to place a 24 25 26 27 28 precise amount of damages because of the jury instruction given by the Court. See Bains LLC v. Arco Products Co., 405 F.3d 764 (9th Cir. 2005). Contrary to Defendants' selective assertion of evidence at the trial of this case, however, there is substantial evidence to support a jury finding against the Defendants in this case for punitive The reason Plaintiff was not awarded economic and emotional damages was due to the fact that the Court excluded Plaintiff's presentation of evidence that substantiated his damages. Had plaintiff been allowed to present all his evidence regarding economic damages, the outcome of the award would have been different. Although the jury was not able to award economic and emotional A. The Court's Response to a Jury Question Was Proper and It Did Not The Reason The Jury Awarded Punitive Damages. Defendants acted with malice or with reckless indifference to Plaintiff's federally protected rights and as such, the jury awarded punitive damages of $100,000.00 against the Defendants. The weight of the evidence clearly supports the jury verdict of punitive damages against the Defendants in this case and as such, Defendants' Motion must fail.

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damages. The partial evidence outlined in Defendants' Motion is not representative of all the significant evidence at trial. Rather, the weight of the evidence at the trial of this case establishes clear malice and reckless indifference on the part of these Defendants to Plaintiff's federally

4 5 6 7 8 9 Plaintiff's store, but yet Defendants refused to do so, either on a temporary or permanent lease basis. 10 11 12 13 14 15 16 17 18 19 20 should have been given to plaintiff either on a temporary or permanent lease basis. Defendants' 21 22 23 24 25 26 27 28 because Plaintiff was not allowed back at the mall until after he signed a permanent lease. Plaintiff also complained to Defendants about disparate treatment and discrimination on several other malicious act or inactions and or reckless indifference to Plaintiff's federally protected rights caused Plaintiff to close his store and not operate at the Arizona Mills Mall from January 15, 2001, to June 15, 2001. The evidence clearly supported Plaintiff's contention that he was informed that the only way he would remain at the mall is if he signed a permanent lease which obviously was the case hand of Defendants and no meaningful action was taken. Plaintiff was offered and he accepted on two occasions, a price of $30.00 per square foot and a price of $28.00 per square foot for Space No. 314 and yet, that space was never given to Plaintiff and was rather given to two white merchants on a temporary lease basis while plaintiff's merchandise was in storage. Space 314 was available and On January 7, 2001 Plaintiff wrote a letter to Dan Jones begging to stay at the mall in any capacity (Trial Exhibit 204), yet he was told there were no available space while spaces were been leased to other non-African-American merchants. On or about March 4, 2001, (Trial Exhibit 17) Plaintiff wrote a letter to Clair Griffith pointing out disparate treatment that he had received on the protected rights. For instance, the evidence in this case clearly established that on or about December 27, 2000, there was available space that Defendants could have placed Plaintiff on a temporary lease basis. After January 15, 2001, there were available store spaces that these Defendants could have placed

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occasions, which led to the February 15, 2002, meeting. Again, Defendants were recklessly indifferent to Plaintiff's complaint of discrimination as proven by the evidence in this case since Defendants simply failed to even investigate the charges of disparate treatment and discrimination.

4 5 6 7 8 9 indifference to Plaintiff's federally protected rights. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff's federally protected rights. In answering the question whether punitive damages are 24 25 26 27 28 appropriate under Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S. Ct. 2118 (1999) the Ninth Circuit in Swinton v. Potomac Corp., 270 F.3d 794 at 810 (9th Cir 2001) held that the action or rather inaction of even low level supervisor may be imputed to an employer. Likewise, the action and to suggest a response to the jury question, the Court submitted the following answer to the jury: Federal law does not require defendants to investigate Dr. Alozie's complaints of discrimination raised in the meeting with Dan Jones. The jury is not precluded from considering the matters brought up in the meeting and any response along with all the other evidence in deciding the discrimination claim. The second sentence of the response to the jury question is consistent with the general Jury Instructions regarding consideration of all evidence in the case. Defendants' inactions towards Plaintiff's discrimination complaint is clear evidence of Defendants' reckless indifference to One of the jury questions to the court was as follows: In a meeting with Dan Jones, when Dr. Alozie brought up feeling discriminated against, was there a legal obligation on the part of the management to address this issue based on Federal law? Should a response have been in writing? After discussion with Plaintiff's and Defendants' counsel and an opportunity for both parties Now that the Defendants have lost on the issue of discrimination and punitive damages, and consistent with their defense in this case on blaming someone else for their own conduct, they are now blaming the Court for the written response to a jury question. Do not blame the Judge, rather blame the Defendants for acting with malice or reckless

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inaction of Defendants' mall manager and his superior for failing to even investigate Plaintiff's charges of discrimination should in all respect be considered by the jury. Consistent with their win at all cost mentality, Defendants now claim that the Court implicitly

4 5 6 7 8 9 jury that the lack of response to an allegation of discrimination was factual evidence that could 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The totality of Defendants' actions and inactions were in indeed substantial evidence that were presented to the jury at the trial of this case by way of trial exhibits and testimony of witnesses employee who complained of them was sufficiently reprehensible to justify a $300,000.00 punitive damage award. Accordingly, it is within legal bounds to give a jury instruction that the jury is not precluded from considering the matters brought up in the meeting and any response along with all the other evidence in deciding the discrimination claim or punitive damages. It is clear that the Court's response to the jury question is within the parameters of the law. More specifically, in Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001), the court held that an employer's failure to address a pattern of racial slurs and harassment was sufficiently reprehensible to support a $1,000,000.00 punitive damage award. In Pavon v. Swift Transp. Co., 192 F.3d, 902, at 909 (9th Cir. 1999), the Court held that an employer's toleration of racial slurs and termination of an constitute discrimination. Although Defendants' interpretation of the Court's instructions is wrong, however Defendants' lack of response or failure to investigate is in fact evidence that was presented at the trial which the jury should have considered in the first place with all other evidence in the case. See Swinton, Id. instructed the jury that landlords have a Federal legal obligation to respond to assertions of discrimination. The Court's response to the jury question speaks for itself, however the Defendants' interpretation of it is flat out wrong. In fact, such accusation by these Defendants is rather meanspirited and frivolous. Defendants even went a step further by accusing the Court of instructing the

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to support punitive damages for their reckless indifference to Plaintiff's federally protected rights. In fact, the testimony of Dan Jones, Clair Griffith and Pam Posten clearly demonstrated Defendants' failure to address Plaintiff's claim of discrimination. Such inaction coupled with their false

4 5 6 7 8 9 A district court abused its discretion in ordering a new trial if the jury's verdict is not against 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A reading of the Defendants' Motion in this case indicates that Defendants are not challenging the jury verdict on the finding of liability of discrimination against Defendants for A new trial may be granted if the verdict is against the great weight of the evidence or is seriously erroneous. Equal Employment Opportunity Commission v. Pape Lift, Inc., 115 F. 3d 676 (9th Cir 1997). B. Contrary to Defendants' Belief, There Is Substantial Evidence to Award Punitive Damages Under Sections 1981 and 1982. erroneous interpretation of the jury instruction. It is the overwhelming evidence of Defendants' acts or inactions that led to the jury verdict of $100,000.00 award of punitive damages and not the Court's response to a jury question. In view of the foregoing, Defendants' Motion must be denied. the clear weight of the evidence. Roy v. Volkswagen of America, Inc., 896 F.2d 1174 at 1176 (9th Cir. 1990), amended, 920 F. 2d 618 (1991). In the case at bar, there is no evidence of impropriety in the jury proceedings or in the jury instructions regarding punitive damages. The district court should not second-guess a jury verdict based on Defendants' disagreement with the verdict or Defendants' impressions exposed their malicious and reckless indifference to Plaintiff's federally protected rights. The general instruction given to the jury was for the jury to consider all evidence before it and that evidence obviously includes Defendants' failure to address Plaintiff's complaint of discrimination as clearly demonstrated by trial exhibits, and testimony of all the trial witnesses.

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violation of Plaintiff's federally protected rights under 42 U.S.C. Sections 1981 and 1982. The Defendants are challenging only the award of punitive damages. Defendants have waived their right to challenge the sufficiency of the evidence supporting jury verdict of discrimination.

4 5 6 7 8 9 verdict of liability for intentional discrimination, (which the Defendants waived for the purpose of 10 11 12 13 14 15 16 17 18 19 20 The testimony of Plaintiff Nicholas Alozie and his employees established that Plaintiff was 21 22 23 24 25 26 27 28 discrimination. The jury also could have concluded that plaintiff suffered economic harm. Plaintiff's expert testified at trial that Plaintiff sustained economic damages of $96,000.00 based on interest for treated differently compared to other non-African-American merchants. It also established that Defendants had available spaces to place Plaintiff's store but refused to do so. Therefore, the jury could have concluded that Plaintiff suffered economic harm during the contractual relationship from intentional delays in providing him a store-and therefore less money earned due to Defendants' contractual relationship, not just the Defendants' self-serving opinion that they reasonably believed that all of the actions they took with regard to Plaintiff were supported by legitimate business reasons. In fact based on all the evidence presented at trial, the jury unanimously disagreed with defendants' position by finding Defendants liable for intentional discrimination and in fact punished them for it. this pending motion), it is likewise sufficient to support punitive damages award. 42 U.S.C. Sections 1981 and 1982 extends its prohibition against racial discrimination in the making, performance, modification, or termination of a contract, or with the enjoyment of a benefit, privilege, term, or condition of the contractual relationship to cover all phases and incidents of the In Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 at 515 (9th Cir. 2000), the Court held that "in general, intentional discrimination is enough to establish punitive damages liability." (quoting Kolstad v. American Dental Ass'n, 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed. 2d 494 (1999). Therefore, since the evidence in this case is sufficient to support the jury

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security deposit and rent differential had Plaintiff been treated the same as other merchants such as Painted with Oil and allowed to continue operation as a temporary merchant. The jury could reasonably have concluded that Plaintiff had made less money while it was closed down for five

4 5 6 7 8 9 Defendants' argument that the evidence at trial was that defendants reasonably believed that 10 11 12 13 14 15 16 17 18 19 20 of whether the defendants reasonably believed that all of the actions they took with regard to Plaintiff 21 22 23 24 25 26 27 28 Plaintiff's evidence of how he was treated differently compared to non African-American merchants which is a clear evidence of discrimination under Sections 1981 and 1982. were supported by legitimate business reasons. The jury could have also believed that defendants intentionally refused to allow Plaintiff back in the mall until Plaintiff demanded a written explanation why he was not given a lease for space 314. Perhaps it should have occurred to the Defendants that the jury simply believed all of temporary leases to non-African American merchants while they claim that they did not have available space to place plaintiff's store, requiring plaintiff to sign a permanent lease as a prerequisite to returning to the mall in any capacity, and failing to address and or investigate his complaints of disparate treatment and discrimination, and that Defendants deserved to be punished for it, regardless all of the actions they took with regard to Plaintiff were supported by legitimate business reasons, simply do not hold water. The jury verdict establishes that Defendants did in fact cause harm to Plaintiff for racial reasons by failing to provide him a store space either on temporary or permanent lease basis from January to June 2001, giving him a run around about the license or lease, giving months or that he made less profit because he was forced into the permanent lease because of Defendants' racial discrimination, but reasonably have found no number that it could attach to the harm, and therefore awarded nominal damages. See Bains LLC v. Arco Products Co., 405 F.3d 764 (9th Cir. 2005).

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Based on the foregoing and all the trial exhibits, and testimony of Plaintiff and his employees, the weight of the evidence supports the jury award of punitive damages in this case and Defendants' motion must be denied.

4 5 6 7 8 9 10 11 12 State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 S. Ct. 1513 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ninth Circuit Court pre and post-State Farm decisions, it is clear that the $100,000.00 punitive damages award in this case must not be disturbed. The Defendants' argument against the $100,000.00 punitive damages award relies heavily on the "ratio" guidepost regarding the disparity between the (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Id. at 418 (citing BMW, 517 U.S. at 575). This Court is required to follow the decisions of the Ninth Circuit Court. Based on the three guidepost analyzed below in accordance with the U.S. Supreme Court decisions and particularly, the (2003). In State Farm v. Campbell, 538 U.S at 416, the court held that "[t]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor". Id. To determine whether a punitive damages award comports with the due process, the court is to consider the following three guideposts: Within the last ten years, the constitutional limits of punitive damages awards has been considered by the United States Supreme Court on at least three different occasions, starting with BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996); next in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S. Ct. 1678 (2001), and then in ____________ II. THE AWARD OF $100,000.00 PUNITIVE DAMAGES IN THIS DISCRIMINATION CASE IS NOT CONSTITUTIONALLY EXCESSIVE

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actual or potential harm suffered by the plaintiff and the punitive damages award. The ratio analysis simply does not apply to this case as illustrated below. This award of $100,000.00 punitive damages must stand based on the third guidepost because

4 5 6 7 8 9 indicium of reasonableness of a punitive damages award is the degree of reprehensibility of the 10 11 12 13 14 15 16 17 18 19 20 the day Plaintiff complained of disparate treatment to Clair Griffith in March 2001, to the February 21 22 23 24 25 26 27 28 discrimination cases and the reasonableness of punitive damages. In Zhang v. American Gem Seafoods, Inc. 339 F.3d 1020 at 1043 (9 th Cir. 2003), the 9th Circuit citing BMW, Cooper Industries 15, 2002 meeting with Daniel Jones. Even after the jury validated Plaintiff's discrimination claim, defendants' still continues to profess their "economics" and "car dealership" excuses. Perhaps, the jury did not punish the Defendants enough. Defendants should simply take some time to read some of the Court decisions on The Defendants have continued to ignore their failure to address their discriminatory conduct from December 27, 2000 when they could have placed plaintiff in a different store space, to January 15, 2005 when they closed plaintiff's store and refused to place him in a different space, to giving space 314 to Tommy Hilfiger and Beyond Dresses while Plaintiff's merchandise was in storage, to defendant's conduct." In the case at bar, the Defendants take the position that "there is little or no evidence of any action that could be considered `reprehensible'." Defendants then claim that there was no evidence of discriminatory animus and no evidence that any acts of their management were motivated by race. In short, these Defendants continue to be in denial of the truth. it is less than the $300,000.00 punitive damages award cap imposed by Congress in Title VII discrimination cases which is analogous to the discrimination case at bar. 1. REPREHENSIBILITY In BMW, 517 U.S. at 575, the court stated that "perhaps the most important

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and State Farm, held that "the reprehensibility of the fraudulent business practices at issue in these Supreme Court cases is different in kind from the reprehensibility of intentional discrimination on the basis of race or ethnicity.

4 5 6 7 8 9 jury could properly have concluded that punitive damages were necessary to prevent such 10 11 12 13 14 15 16 17 18 19 20 reprehensible than would appear in a case involving economic harms only"). Because racial 21 22 23 24 25 26 27 28 of racial slurs and termination of an employee who complained of them was sufficiently reprehensible to justify a $300,000 punitive damage); Hampton v. Dillard Dep't Stores, Inc., 247 discrimination is reprehensible, it often results in large punitive damage awards. See Zhang, at 1043; Swinton, 270 F.3d at 817-18 (finding that an employer's failure to address a pattern of racial slurs and harassment was sufficiently reprehensible to support a $1 million punitive damage award); Pavon v. Swift Transp. Co., 192 F.3d 902, 909 (9th Cir. 1999)(finding that an employer's toleration consistently been considered by the Courts as a different kind of harm, a serious affront to personal liberty. See Zhang v. American Gem Seafoods, Inc. 339 F.3d 1020 at 1043 (9th Cir. 2003); Romano v. U-Haul Int'l, Inc., 233 F.3d 655, 673 (1st Cir. 2000), cert. denied, 534 U.S. 815, 122 S. Ct. 41, 151 L.Ed. 2d 14 (2001)(finding that a plaintiff's termination on the basis of her sex was "more discrimination from occurring in the future. See Bains LLC v. Arco Products Co., 405 F.3d 764 (9 th Cir. 2005) In BMW the Court held that "purely economic" harms are less likely to warrant substantial Punitive Damages awards, 517 U.S. at 576, 116 S.Ct. 1589, however, intentional discrimination has In the case at bar, Plaintiff was the only African-American merchant operating a store at Arizona Mills Mall out of at least 175 other retail stores excluding anchor stores, which also consist of non-African-American stores. Yet the Defendants continued their denial and clear failure to remedy or even address or investigate the discriminatory complaints from Plaintiff, and as such, the

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F.3d 1091, 1116 (10th Cir. 2001). cert. denied, 534 U.S. 1131, 122 S. Ct. 1071, 151 L.Ed. 2d 973 (2002)(finding that where two African American women had been suspected shoplifting and briefly detained on the basis of their race, the store's conduct was sufficiently reprehensible to support the

4 5 6 7 8 9 likewise sufficiently reprehensible to support the award of at least $100,000.00. Defendants' motion 10 11 12 13 14 15 16 17 18 19 20 cited by Defendants and in fact much less than the $1 million in Swinton, the $300,000.000 in Pavon 21 22 23 24 25 26 27 28 "[w]e need not rely solely on the ratio, because the three BMW guidepost-which looks to the difference between the amount of punitive damages awarded and the civil penalties authorized or v. Swift transp. Co., the $1.1 million in Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1116 (10th Cir. 2001), cert. denied, 534 U.S. 1131, 122 S.Ct 1071 (2002), and the $2.6 million in Zhang, or the $5 million in Bains LLC, reduced for award in the range of $300,000 to $450,000.00 In Bains LLC v. Arco Products Co., 405 F.3d 764 at 777 (9th Cir. 2005), the Court held that its ratio to the actual harm inflicted on the plaintiff. BMW, 517 U.S. at 580, 116 S.Ct.1589. The Supreme Court has consistently refused to give a precise mathematical guideline for what ought to be considered constitutionally acceptable range or ratio. Plaintiff's $100,000.00 punitive damage award is much lower than the award in all the cases 2. THE RATIO OF PUNITIVE DAMAGES TO COMPENSATORY DAMAGES. The second guidepost in determining an unreasonable or excessive punitive damages award is warrants immediate and total denial. award of $1.1 million in punitive damages. The jury has already found the Defendants liable for discrimination in this case. For the purpose of Defendants' pending motion, the issue of their liability for discrimination has been waived for failure to raise the issue in their motion for new trial. Defendants' conduct and inaction was

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imposed in comparable cases-provides us with another measure that restrains the permissible amount." The Court then stated that "[B]oth pre-State Farm in Swinton and post-State Farm in Zhang, we noted that the $300,000.00 statutory limitation on punitive damages in Title VII cases was

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 517 U.S. at 583. In both BMW and State Farm, the Court concluded that the maximum fine at issue 21 22 23 24 25 26 27 28 In Swinton, supra, a racial discrimination case, the court indicated that there are no `civil penalties' for the type of conduct for which the defendants in that case was held liable, however, was $10,000.00. In BMW, the court found that the $2 million award was substantially greater than the statutory fines available," 517 U.S. at 584, and that the civil fine in State Farm was "dwarfed by the $145 million punitive damages award." In deed none of these punitive damages award can be compared to Plaintiff's $100,000.00 punitive damages award. acceptable good behavior. In this case, the Jury has already determined that Defendants intentionally discriminated against Plaintiff. The third guidepost is decisive of the case at bar. It is a comparison of the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct. BMW, 3. CIVIL OR CRIMINAL PENALTIES The Defendants claim that they are not aware of any comparable cases where a landlord was punished for not acknowledging feelings of discrimination. Again these Defendants are either ignorant of the law or perhaps they are determined to codify their discriminatory conduct as an an appropriate benchmark for reviewing Section 1981 damage awards, even though the statute did not apply to Section 1981 cases." Id. at 777. In view of the Ninth Circuit Court's ruling in the above cited cases, it is apparent the ratio analysis is not applicable to the case at bar because the award is less than $300,000.00.

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Congress had imposed a $300,000.00 punitive damage cap for violation of Title VII, reasoning that this damage cap represented a legislative judgment similar to the imposition of a civil fine. 270 F.3d at 820. Plaintiff is unaware of any reported discrimination case where the punitive damages award of

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Matter of Law on Punitive damages and Motion for New Trial, to Amend the Judgment or Remittitur, 21 22 23 24 25 26 27 28 disturbed. Plaintiff further requests that Defendants' Renewed Motion for Judgment As a Matter of III. CONCLUSIONS Based on the foregoing, Plaintiff requests that the jury verdict on punitive damages not be on Punitive Damages must be denied. excessive and it will not be disturbed. Likewise, the $100,000.00 punitive damages award to Plaintiff herein is not constitutionally excessive because it is far less that the $300,000.00 punitive damages cap established by the United States Congress for an analogous statute, Title VII. Defendants' Renewed Motion for Judgment as a Arco Products Co., 405 F.3d 764 (9th Cir. 2005). A reading of the discrimination cases decided in the Ninth Circuit Court including Section 1981 non-employment discrimination cases stand for the proposition that in any discrimination case, an award of punitive damages of less than the $300,000.00 Title VII cap is not constitutionally $300,000.00 or less was ever reduced by the Court as excessive even if the jury awarded nominal damages of $1.00. In fact the host of Ninth Circuit Court cases tend to support the proposition that the Court will not disturb any punitive damages award of less than $300,000.00 in a discrimination case, including discrimination under 42 U.S.C Sections 1981 and 1982. See Swinton v. Potomac; supra; Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020 (9 th Cir. 2003); and Bains LLC v.

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Law on Punitive Damages and Motion for New Trial, to Amend the Judgment or Remittitur on Punitive Damages be denied in its entirety.

RESPECTFULLY submitted this 20th day of September 2005. THE MEGWA LAW OFFICE BY_/s/ Sabinus A. Megwa SABINUS A. MEGWA 6811 South Central Ave. Phoenix, Arizona 85042 Attorney for Plaintiff COPY of the foregoing document was mailed on this 20th day of September 2005, to: Shelton L. Freeman, Esq. Michael A, Cordier DeConcini, McDonald, Yetwin & Lacy, P.C. 7310 North Sixteenth Street, Suite 330 Phoenix, AZ 85020 Attorneys for Defendants /s/ Lena Bauman

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