Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. DEFENDANT'S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY WITNESSES WITH NO PERSONAL KNOWLEDGE No. 03-0642 PHX DGC

22 23 24 25 26 27 28 witnesses of this evidence during trial. Defendant Federal Express Corporation d/b/a/ FedEx Express ("FedEx"), by and through counsel, hereby submits its Motion in Limine to exclude regarding testimony by witnesses with no personal knowledge. FedEx respectfully requests that the Court issue an order in limine precluding any mention by Plaintiff, Plaintiff's counsel, and Plaintiff's

Case 2:03-cv-00642-DGC

Document 118

Filed 11/02/2006

Page 1 of 3

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

Fed. R. Evid. 602 provides in part: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. inadmissible. Testimony from individuals without personal knowledge is

Long v. GMC, 865 F.2d 1268 (6th Cir. 1989) (finding that affidavit

testimony of individual with no first-hand knowledge was inadmissible); Bradford v. Norfolk Southern Corp., 54 F.3d 1412 (8th Cir. 1995) (finding that proposed testimony by hourly employees did not constitute colorable evidence of constructive discharge when the employees offered only their personal opinions and had no direct knowledge of management's intent). Thus, any testimony from individuals who did not take part in employment decisions involving Plaintiff that Plaintiff may attempt to introduce at trial should be excluded. Defendant expects that Plaintiff may offer the testimony of Mr. Ron Bennett, Ms. Mari Murphy, and Mr. Bill Jones and other evidence regarding whether Scottsdale management gave preferential treatment to Caucasian employees and employees with alleged disabilities. To the extent that they have no personal knowledge of such

treatment of Caucasian or non-disabled employees, their testimony should be excluded. None of these witnesses had access to the employment files of their co-workers and, therefore, have no personal knowledge with respect to any management personnel decisions or the reasons for such decisions. None of these employees took part in the employment decision at issue and, therefore, they have no personal knowledge of the reasons for his discharge. Testimony of present and former employees who did not take part in the decision at issue constitutes

Case 2:03-cv-00642-DGC

- 2 Document 118

Filed 11/02/2006

Page 2 of 3

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

nothing more than the personal opinion of individuals who have no direct knowledge of management's reasoning and intent in making its personnel decisions.1 Moreover, in the Order on the Motion for Summary Judgment, this Court explicitly held that Plaintiff's claims of race or disability discrimination were dismissed. As such, this information is unduly prejudicial to Defendant under Fed. R. Evid. 403. DATED this 2nd day of November, 2006. Respectfully submitted, By: /s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION and Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation

CERTIFICATE OF SERVICE I hereby certify that on, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 /s/ Mary H. Beard Mary H. Beard

602469

Case 2:03-cv-00642-DGC

- 3 Document 118

Filed 11/02/2006

Page 3 of 3