Free Motion in Limine - District Court of Arizona - Arizona

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Mishka L. Marshall (#016641) MARSHALL LAW GROUP, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 Telephone: 602/274-7873 Facsimile: 602/274-8207 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SEAN L. HARGROW, Case No. CIV 2003-0642 PHX DGC Plaintiff, V. FEDERAL EXPRESS CORPORATION, a Delaware corporation doing business in Arizona; JOHN and JANE DOES I-X;
BLACK CORPORATION I-X, WHITE LIMITED LIABILITY COMPANIES I-X, PLAINTIFF'S MOTION IN LIMINE RE DEFENDANT'S AFFIRMATIVE DEFENSE OF MITIGATION OF DAMAGES

Defendants.

Plaintiff Sean Hargrow submits this Motion in Limine seeking to preclude ANY testimony, evidence, argument or instruction from Defendant on the affirmative defense of Plaintiff's failure to mitigate damages. Plaintiff's motion is based on the fact that Defendant has failed to disclose or offer evidence as to Plaintiff's mitigation of damages. This motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES During discovery, Defendant failed to disclose any evidence, witness or testimony demonstrating the availability of equivalent jobs between the date of termination and the proposed date of trial. Defendant also failed to present evidence, witnesses or testimony

Case 2:03-cv-00642-DGC

Document 138

Filed 11/02/2006

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that Plaintiff failed to search for employment after he was terminated by Defendant. Because Defendant has not produced such evidence, it cannot sustain its burden of proof on the affirmative defense of mitigation of damages. The Ninth Circuit has set very specific requirements for the proof required to demonstrate that a plaintiff failed to meet his duty to mitigate damages in light of the requirement that a party claiming discrimination "use reasonable diligence in finding other suitable employment." See Ford Motor Co. v. EEOC, 458 U.S. 219 (1982). As a general rule, the employer in a discrimination case has the burden of proving the failure to mitigate damages. See, Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1994); Sangster v. United Airlines, Inc., 633 F.2d 864 (9th Cir. 1980) cert denied 451 U.S. 971 (1981). In order to satisfy the proof necessary to sustain the defense, an employer must prove: 1) that based on the undisputed facts in the record, during the time in question there were substantially equivalent jobs available, which the plaintiff could have obtained and 2) that the plaintiff failed to use reasonable diligence in seeking such a job. See Odima, supra at 1497 citing EEOC v. Farmer Bros., Co., 31 F.3d 891, 906 (9th Cir. 1994). In both Odama and Farmer Bros. the Ninth Circuit recognized that an employer is required to satisfy both criteria to sustain its burden of proof on the affirmative defense of mitigation of damages. In Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1994), the employer claimed that the employee failed to mitigate his damages by not making a reasonable job search, but presented no evidence of available comparable employment. The Court

rejected the asserted mitigation of damages defense and found no Ninth Circuit authority that the employer did not have to meet its burden of proof with regard to available employment, even in situations where the employer argued that the employee completely failed to look for any employment. The Court rejected the employer's mitigation of damages defense because the employee looked for other employment. Odima at 1497. In the present case, Defendant must show that "substantially equivalent jobs" were

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available and Plaintiff failed to use "reasonable diligence" in seeking work. If Defendant fails to provide evidence of both criteria, Defendant's mitigation of damages defense fails. Defendant has failed to disclose any evidence or testimony that would support the either requirements for a mitigation of damages defense. Eliminating an affirmative defense that is wholly unsupported serves to avoid issues that are without merit. Plaintiff respectfully requests that the Court enter an order precluding any testimony, evidence, argument or instruction from Defendant on the affirmative defense of failure to mitigate damages. Respectfully submitted this 2nd day of November, 2006. s/Mishka L. Marshall Mishka L. Marshall MARSHALL LAW GROUP, P.C. 777 E. Thomas Rd., Suite 210 Phoenix, Arizona 85014 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006 I transmitted by electronic filing the foregoing Motion in Limine re Affirmative Defense of Mitigation of Damages to the United States District Court for the District of Arizona using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary H. Beard FEDERAL EXPRESS CORPORATION 3620 Hacks Crossing Road, Building B-3rd Floor Memphis, Tennessee 38125 Lori Higuera Alec Hillbo FENNEMORE CRAIG, PC 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913

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Counsel for Defendant s/Mishka L. Marshall Mishka L. Marshall

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