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

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233 [email protected]
1 4

Attorneys for Plaintiff Rubecca Mikkelsen, etc.
5

John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, #150 7 Phoenix, Arizona 85014 (602) 285-1444 8 [email protected]
6 9 10

Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

11

DISTRICT OF ARIZONA
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) on behalf of MILES MIKKELSEN,) JERRET MIKKELSEN and ALLISON) MIKKELSEN, the minor children of) Kelly Mikkelsen, deceased, and on) behalf of DENNIS MIKKELSEN,) natural father of Kelly Mikkelsen,) deceased; and on behalf of TAYLOR) R. FOX, a minor, by her next friend) and natural mother, TRACY FOX-) ) TANGA, ) ) Plaintiffs, ) ) vs. ) C O R R E C T I O N A L H E A L T H) RESOURCES, INC., a foreign) corporation; KENNETH L. FAIVER) and JANE DOE FAIVER, husband and) wife; JOSEPH EDWARD RICH, M.D.) and JANE DOE RICH, husband and) wife; DOES I through V, inclusive, ) ) ) Defendants. ______________________________ ) ) )

No. CIV 02-2252-PHX-JAT PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO PRECLUDE EVIDENCE OR DISCUSSION OF THE LIABILITY [OF] JANE DOE DEFENDANT MRS. FAIVER

(Assigned to the Honorable James A. Teilborg)

Plaintiffs respond in opposition to Defendants' Motion in Limine to Preclude
28

Evidence or Discussion of the Liability [of] Jane Doe Defendant Mrs. Faiver. Defendants'
Case 2:02-cv-02252-JAT Document 269 Filed 10/25/2005 Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

motion should be denied because it is not a proper motion in limine, but an untimely dispositive motion on a defense that Defendants' have waived. If this Court considers the merits, it should deny Defendants' motion, because Mrs. Faiver was named in order to reach community property. Accordingly, she is a proper defendant and this Court should permit any amendment necessary to clarify her status. This matter has been in litigation in this federal court for more than two years. At no point have Defendants ever objected to the inclusion of Mrs. Faiver as a defendant or suggested that she has no liability in this action. Defendants' failed to raise this issue for more than two years in any pleading, disclosure, or motion. Accordingly, they have waived the argument. A motion in limine is intended to prevent the prejudice caused by the inadvertent admission of inadmissible evidence, particularly where instructing the jury to ignore evidence cannot change the impact of the evidence on the jury. Defendants' motion is not a proper motion in limine. Defendants' motion effectively seeks dismissal of Mrs. Faiver as a defendant and is really a dispositive motion. Dispositive motions were due in this case no later than October 22, 2004 ­ almost one year ago. (This Court's July 14, 2004 Minute Entry.) Because Defendants failed to file their dispositive motion by the deadline imposed by this Court, the motion should not be considered. If this Court considers the merits of Defendants purported motion in limine, the motion should be denied. Defendant Kenneth Faiver was the primary representative of Defendant CHR and his misconduct in this case all arose in the context of his work for CHR. Because he was earning income for his marital community through CHR, he was acting at all times for the benefit of his marital community. As such, his wife, Rosemary Faiver, is a proper party defendant. A.R.S. § 25-215(D). Since Mrs. Faiver was not personally involved in the events that gave rise to this litigation, it should have been apparent that she was named for the purpose of reaching community assets. It appears that Plaintiffs unfortunately failed to include in their complaint the simple assertion that Mr. Faiver was acting at all times for the benefit of his marital community.
2 Case 2:02-cv-02252-JAT Document 269 Filed 10/25/2005 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs hereby seek leave to amend to add such a statement, and correct the caption to reflect Mrs. Faiver's name, Rosemary. Such amendment would change none of the facts or legal issues in this litigation. Indeed, it cannot be seriously disputed that Mr. Faiver's income from CHR benefited the Faivers' marital community, and Defendants are simply seeking the benefit of plaintiffs' unfortunate oversight in omitting one sentence from their complaint. While Plaintiffs certainly should have included a statement that Ken Faiver was acting on behalf of his marital community, Defendants must have been aware of the reason that Mrs. Faiver was named as a defendant from the outset. An amendment to more clearly indicate that Mrs. Faiver was sued to reach the Faivers' marital community could have been made much earlier in the litigation, if Defendants had filed a timely motion to dismiss. Leave to amend should be freely granted. F.R.C.P. 15(a). Leave to amend should be granted if it appears at all possible that the Plaintiffs can correct any defect in the Complaint. Balistreri v. Pacifica Police Dep't., 901 F. 2d 696, 701 (9th Cir. 1990). Since amendment would not change the facts and legal theories at issue and defendants are not prejudiced by the amendment, leave to amend should be granted. WHEREFORE, Plaintiffs respectfully request that this Court enter an order denying Defendants' motion in limine effectively seeking dismissal of Mrs. Faiver, because Defendants have waived this argument and their purported motion in limine is an untimely dispositive motion. If this Court reaches the merits, it should deny the motion and permit amendment of Plaintiffs' complaint to add the statement that Mr. Faiver was acting on behalf of the Faivers' marital community at all material times and change the caption to reflect Mrs. Faiver's actual name.
RESPECTFULLY SUBMITTED this 25th day of October, 2005.

BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014
3 Filed 10/25/2005 Page 3 of 4

Case 2:02-cv-02252-JAT

Document 269

1 2 3 4 5 6 7 8 9 10

Attorneys for Plaintiff Dennis Mikkelsen CLARK & MOORE

By

/s/ John A. Micheaels (with authorization) A. James Clark 256 South Second Avenue, #E Yuma, Arizona 85364 Attorneys for Plaintiffs Miles, Jerret and Allison Mikkelsen

Original/Copy of the foregoing mailed/ delivered this 25th day of October, 2005, to:

Clerk of the U.S. District Court 401 West Washington Street 11 Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 13 401 West Washington Street Phoenix, Arizona 85003
12 14 15 16 17 18 19 20 21

A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 22 100 North Stone Avenue, #303 Tucson, Arizona 85701 23 Co-Counsel for Plaintiff Fox Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 25 150 W. Second Street Yuma, Arizona 85364 26 Co-Counsel for Plaintiff Fox
24 27 28

By /s/ Sue Ketz
4 Case 2:02-cv-02252-JAT Document 269 Filed 10/25/2005 Page 4 of 4