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

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RICHARD J. HARRIS LAW OFFICES, P.C .
4445 E. HOLMES A VE., SUITE 106 MESA, AZ 85206 (480) 854-3500 [email protected]

Richard J. Harris ­ #013859 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, v. State of Arizona Citizens Clean Election Commission; Colleen Connor et al. Defendants. Plaintiff Matt Shaffer hereby responds in opposition to Defendants' MOTION FOR
JUDGMENT AS A MATTER OF LAW (JMOL); FOR NEW TRIAL ON DAMAGES.

CV03 2344 PHX FJM RESPONSE TO DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW; MOTION FOR REMITTITUR OR ALTERNATIVELY FOR NEW TRIAL ON DAMAGES

and MOTION FOR REMITTITUR OR ALTERNATIVELY

This RESPONSE is supported by the accompanying

memorandum of points and authorities together with the record of the court. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Colleen Connor maliciously and callously defamed Matthew Shaffer in her memo to DPS on September 10, 2002. She accused him of felony conduct despite having no factual basis for so doing. The defamatory allegations were intertwined with her decision to terminate his employment on October 1, 2002. That same week, Connor published the defamatory accusations both to his personnel file and to the media in the first week of October, 2002. Thereafter Shaffer's friends withdrew from him; he was denied several positions for which he was amply qualified; he was unable to find any employment in his chosen field of public service. He was emotionally distressed, humiliated and depressed to

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the point that one friend was concerned he was contemplating suicide. 417:18-418:19. The evidence is that Connor's defamation and Shaffer's termination go hand in hand. Connor even admitted that her statements to DPS were made in connection with the termination of Shaffer's employment. 806:13-17. The court instructed the jury (without objection) that Shaffer's five claims arose from a single set of operative facts. 1296:12-15. To attempt now to apportion the economic, reputation and emotional distress damages between the intertwined counts is like unscrambling an egg.1 The timeline clearly shows that the defamation preceded Shaffer's loss of employment at the CCEC; his emotional distress; and his inability to find replacement employment. The evidence amply supports the jury's conclusion that Connor's false statements not only cost him future employment opportunities, but also his job at the CCEC. No doubt the jury concluded Shaffer's reputation was irreparably harmed by Connor's defamation. No doubt the jury concluded Shaffer suffered emotional distress over these false accusations. Shaffer was not given the chance to clear his name despite repeated requests for a name-clearing hearing. Such a hearing, if meaningful, could have resulted (as the trial did) with a finding that Connor's accusations were false and made with reckless disregard to the truth. But-for the defamation and but-for the denial of his liberty interest hearing, Shaffer would still be employed by the CCEC; his reputation damages would have been little or none and his emotional distress would have been mitigated. No doubt the jury concluded that

If Defendants truly believed their own position, they surely would have joined Shaffer in his concerns during discussion on the verdict forms. 1118-1120. At that time the undersigned argued that while it is likely that all the damages for wrongful termination would be the same as those for defamation, it is possible the jury may find, for example, that the reputation damage from termination was one amount while the reputation damage for defamation was an additional amount. Contrary to their position in this motion, Defendant claimed there was no way or need to apportion these damages between the claims. Shaffer argued that the verdicts for wrongful termination and defamation might need to be added together. Defendants did not join Shaffer in that argument and the court denied Shaffer's request to permit add ition of wrongful termin ation d amages to defamation dam ages findin g that they were essentially "different causes of action for what is essentially the same claim." Defendants did not disagree un til this motion. Defendants are judicially estopped from arguing in against a position they argued in favor of successfully at trial. It is at best hypocritical for Defendants to now feign o bjection to the instruction s.

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Shaffer was dramatically harmed by the failure to provide a name clearing hearing. Defendants' motion concedes the jury had enough evidence to conclude Shaffer "suffered $1.1 Million in [economic, reputation and emotional distress] damages as a result of his termination. . ." MOTION p. 11:1. Nevertheless, Defendants argue for JMOL because they see no evidence to support economic, reputation or emotional distress damages on Shaffer's defamation claim and liberty interest claim, both of which arose from the same set of operative facts. Defendants apparently argue (without benefit of any basis) the jury simply gave Shaffer too much money to compensate him for the destruction of his career, his reputation and for depriving him of his constitutional rights. Defendants' motion for JMOL is substantively "too little" and procedurally "too late." It is too late, because as a matter of law, the argument of insufficiency of evidence (on causation of damages and actual malice) is waived if not made in a motion for JMOL at the close of all evidence. It is substantively too little, because there is clear and convincing evidence of Connor's actual malice and evidence supporting the damages. Similarly,

Defendants' motion for remittitur is improper because it is moot. The court has already limited Shaffer to the highest of the damages awards and not permitting the addition of such damages. Indeed if the court were to order remittitur on the liberty interest claim, the Court would then have to add the two together because the elements of damage are so distinct. II. PROCEDURAL DEFICIENCY OF DEFENDANTS' MOTION Defendants' motion appears to seek JMOL on two issues; insufficiency of evidence to support damages caused by defamation and insufficiency of evidence to support the conclusion that Colleen Connor acted with "actual malice" when she falsely accused Shaffer of criminal conduct.2

However, in their conclusion, Defendants appear to abandon JMOL on the damages issue. Defendants fail to indicate what if any relief they are seeking with respect to the damages judgm ent stating only that "the verdict must be corrected ." Defendants com e short of explainin g what correction would be ap propriate on JMOL.

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III.

JMOL SHOULD BE DENIED FOR PROCEDURAL AND SUBSTANTIVE REASONS A. Defendants Waived Any Argument Regarding Sufficiency of the Evidence Because They Did Not Renew Their Motion for JMOL at the Close of Evidence Pursuant to F.R.Civ.P. 50

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By failing to move for JMOL at the conclusion of the evidence, Defendants waived 5 any argument regarding the sufficiency of evidence. Rule 50 permits parties to move for 6 JMOL at the close of all the evidence (not only after a plaintiff rests). Making the motion at 7 the close of plaintiff's case and failing to make the motion at the conclusion of the evidence 8 9 challenge the sufficiency of the evidence in a renewed motion for JMOL after the entry of 10 judgment if the party failed to so move at the close of all the evidence. 11 Transportation Co. v. Santa Fe Trail Transportation Co., 786 F.2d 1342, 1345-1346 (9th 12 Cir. 1985). See, also Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003). This 13 rule is no different in a first amendment case. The court's duty under a Rule 50 motion for 14 JMOL are intertwined with its duty for record review in a defamation case. Starkins v. 15 Bateman, 150 Ariz. 537, 539, 724 P.2d 1206, 1208 (App. 1986). 16 17 they did not renew the motion at the close of evidence. Defendants' own brief concedes, 18 "the Court last considered this issue [on sufficiency of evidence for defamation] after hearing 19 plaintiff's evidence. . ." Motion p. 7:16-17 (italics in original). The court ruled against 20 Defendants that time. Consistent with Rule 50, the court observed that Defendants could 21 renew the motion after Connor testified. However, Defendants failed to do so. As a matter 22 of law, Defendants' failure to make a motion for JMOL after the close of all evidence 23 constitutes a waiver of any argument regarding sufficiency of evidence. Defendants offer 24 25 26
R ICHARD J. H ARRIS L A W O FFICES , P .C . At that time, the court used strong language to indicate the even under the heightened standard of clear and convincing eviden ce of actual malice, it appeared to the court from the evidence adduced by Plaintiff that his defamation claim w as perhaps his stron gest claim .
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does not preserve objection to error. Indeed, in the 9th Circuit, a party is not entitled to

Farley

Defendants only moved for JMOL at the close of Plaintiff's case.3 Defendants admit

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no authority as to why the rule should not apply to them. The court must deny JMOL because Defendants failed to move for JMOL at the close of all the evidence. B. Defendants Improperly Assert Different Grounds for JMOL Which Were Not Urged in Their Original Motion.

Even if Defendants had renewed their motion for JMOL at the close of evidence, the 5 argument of insufficient evidence on damages would still be improper. 6 impermissibly argue for the first time that there is no evidence of damages resulting from 7 Connor defaming Shaffer. This argument was not made at trial. It was not raised in 8 Defendants' original motion for JMOL (109). In that motion Defendants contended only that 9 the defamation claim failed for lack of clear and convincing evidence of actual malice and 10 that no reasonable jury could conclude that Connor's defamatory statements were anything 11 other than mere opinions. Defendants' failure to raise the damages question at the close of 12 Plaintiff's case, bars Defendants from raising them in a post-verdict motion for JMOL. 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICHARD J. H ARRIS L A W O FFICES , P .C . Plaintiff incorporates by reference the arguments raised in his response to the motion for JMOL filed at the close of Plaintiff's case and his resp onses to the motions for summ ary judgment.
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Defendants

A party cannot raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion. See Advisory Comm. Notes to the 1991 Amendments, Fed. R. Civ. P. 50 ("A post trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion."); Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990) ("[Judgment notwithstanding the verdict] is improper if based upon grounds not alleged in a directed verdict [motion]."). Freund v. Nycomed Amersham, at 761. Again, Defendants offer no authority for suspending this rule in this case. C. Plaintiff Clearly and Convincingly Evidenced Connor's Actual Malice

Although Defendants' motion for JMOL is procedurally improper, it could not stand, even if it were properly before the court. This is because there is clear and convincing evidence of actual malice.4 The court already ruled that Shaffer's evidence alone was sufficient to establish by clear and convincing evidence that Colleen Connor acted with actual malice. In ruling on the first motion for JMOL, the court held:

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Then with respect to Count 3, the defamation claim, I believe this claim is probably the strongest claim in the case, even though the plaintiff's obligation may be higher with respect to the clear and convincing evidence standard. The uncontradicted evidence so far with respect to this claim is fairly powerful, and the -- there is sufficient evidence from which the jury could find by clear and convincing evidence a reckless disregard of the truth.

Thus, if the jury found (as it necessarily did) that Connor's testimony was contradictory and that she was unable to state a factual basis for her accusations, such findings clearly establish actual malice. The presentation of additional evidence by Colleen Connor and others does nothing to preclude the jury from weighing credibility and deciding in Shaffer's favor. Indeed the jury likely based its verdict upon the very evidence to which the court was referring when it denied JMOL at the close of Plaintiff's case. Defendants offer nothing which would now prevent the jury or the court from relying on that same evidence which the court already found sufficient to clearly and convincingly support a finding of actual malice. Defendants overstate the holding of Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984). Bose does not purport to require a de novo review of credibility questions. The Court merely held that "judges--and particularly Members of this Court--must exercise such review in order to preserve the precious liberties established and ordained by the Constitution." Id. at 510-11. But Defendants have failed to articulate a "precious

liberty" under the first amendment which would grant license to Colleen Connor to recklessly publish per se defamation about Shaffer. Indeed she cannot after having stated under oath in deposition that she had no factual basis for her statements. This case also presents the unusual circumstance where Shaffer's constitutional right to liberty under the 14th Amendment must be afforded the same deference as Defendants' freedom of speech. Defendants cannot use freedom of speech as shield from liability and a sword to deprive Shaffer of his liberty interest. Arizona has expressly held that a Bose analysis does not displace the jury's function

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in weighing evidence. We are reluctant to interpret Bose as requiring us to undertake a de novo review of the record to determine whether the underlying facts which support the verdict were established by clear and convincing evidence. An appellate court is not equipped to make such a review effectively, and to do so would entirely displace the function of the jury in defamation cases. Instead, we have undertaken a complete and independent review of the trial record to determine whether the ultimate facts are clearly and convincingly sufficient to establish malice. Starkins v. Bateman, 150 Ariz. 537, 724 P.2d 1206 (App. 1986). Connor's own deposition testimony clearly and convincingly establishes actual malice. Connor testified that she was prepared for the deposition and that she had reviewed the relevant materials. 955-957. However, despite being asked several times and in different ways, Connor was unable to articulate any factual basis for her felony accusations against Shaffer. 830-831. She testified that she could think of nothing that would better refresh her recollection on the questions about actual malice. She confessed there was nothing in the DPS memo to support her conclusory allegations. Her self-serving, contradictory testimony at trial was weighed by the jury and found to be not-credible. Indeed it is unbelievable that Connor would not have been prepared to testify about the factual bases for her allegations at her deposition. It is unbelievable that she could not articulate a factual bases in her own (failed) MOTION FOR SUMMARY JUDGMENT on the issue of actual malice. Even at trial, Connor admitted to knowing that at least one of the statutes she referenced was wrong and that she did nothing to correct that falsity until she was caught on cross examination. 1005:91007:11. That is knowing falsity. The ultimate facts clearly support a finding of malice. The jury obviously found that. The court also found the evidence sufficiently clear and

convincing to deny summary judgment; to give the case to the jury; to enter judgment on the jury's verdict; and to deny Defendants' prior motion for JMOL. It should do so again. In desperation, Defendants attempt to bolster Connor's failed credibility by relying, on Commissioner Detrick and Connor's replacement, Todd Lang (neither of whom could possibly testify as to Connor's knowledge or disregard). Commissioner Detrick's testimony Document 149 7 Filed 11/03/2005 Page 7 of 13

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was given before the close of Plaintiff's case and thus was already weighed by the Court when it denied Defendant's prior motion for JMOL. And Lang conceded that he did not believe Shaffer engaged in a felony. 1056:16-1057:22. A fair reading of the case, with deference to the jury on the questions of credibility of witnesses, compels a denial of Defendants' motion for JMOL. The jury necessarily concluded that Connor was not credible and that she had no reasonable explanation for her false accusations. convincing evidence establishes Connor's actual malice. IV. REMITTITUR Remittitur is defined as "a judge's order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff." 5 However the jury did not award an amount in excess of that asked for by the plaintiff. Without any objection by Defendants, Shaffer said he would ask for economic damages together with reputation and emotional distress damages in a similar amount to Shaffer's economic damages. 130:10-13. The award of $1.1 M is consistent with Shaffer's request. Defendants impermissibly ask the court to invade the province of the jury. The question of damages for a tort, especially in a case of libel or slander, is peculiarly within the province of the jury, and unless the damages are so unconscionable as to impress the court with its injustice, and thereby induce the court to believe that the jury were actuated by passion, prejudice or partiality, it rarely interferes with the verdict. It is not for us to say that, had we been assessing the damages, we would have given a less amount. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries. Hansen v. Stoll, 130 Ariz. 454, 459, 636 P.2d 1236, 1241 (App., 1981) Moreover, the award of $1.1 M is supported by the evidence. "A district court must uphold a jury's finding of damages unless the amount is `grossly excessive or monstrous,' clearly not supported by the evidence, or `only based on speculation and guesswork.'" McKenzie v. City of Milpitas, 953 F.2d 1387 (9th Cir. 02/07/1992)(citing Handguards, Inc. The clear and

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http://dictionary.law.com/definition2.asp?typed=remittitur

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v. Ethicon, Inc., 743 F.2d 1282, 1297 (9th Cir. 1984) cert. denied, 469 U.S. 1190 (1985)). Remittitur should be denied in this case. A. Remittitur Is Improper on the Jury's Award for Defamation Damages

As discussed above, a motion for insufficient evidence on damages is not proper unless the moving party raised the issue in a motion for JMOL at the close of all evidence. Moreover, it is ironic that Defendants would challenge the sufficiency of evidence on Shaffer's defamation per se claim because such claims do not require evidence of damages at all. Indeed the jury was instructed that they could presume damages on this claim.6 However, even if the issue were properly before the court, the defamation award should stand because there is substantial evidence to support the same. There was evidence that Shaffer was damaged by the defamatory statements that were made in connection with his termination. He was unable to find any meaningful employment for almost a year. Shaffer had never taken more than 2 months to find a government job before the defamation. 322:3-7. At trial, the jury heard evidence from every publicemployee witness to the effect that in public service one's reputation was of the utmost importance. Even Connor testified that she could not reduce the value of her reputation to dollars. The jury heard evidence that the economic harm from being unable to find

comparable employment was at least $441,646 and significantly higher if the jury considered the fact that the CCEC raised the salary for Shaffer's position by $15,000.00 per year.7 The jury heard evidence that Shaffer was denied employment opportunities because of the defamatory statements Connor made to DPS and published to anyone who requested the

While Defendants claimed to object to the instruction, they failed to articulate a legitimate basis for the objection (com plain ing o nly about the source reference which, of course, was not given as part of the instruction ). 1087:10 -1090:8. Defendants did not object to the general damages instruction given by the court. 1086:10 -1087:5 Because Defendants objected to having the expert reduce these additional economic damages to present value, the jury cou ld even multiply the $15,000/year by the 24 years until Shaffer reached 65 and add it to th e expert's number. Thus the jury could have con cluded Sh affer's economic damages alone app roach $800,000.00.
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same. 317:9-318:1. The jury heard compelling evidence of the emotional distress Shaffer suffered (including the angry and desperate statement Shaffer made to the CCEC after learning about the DPS memo which Connor published to the media). While the award for $1.1 M is substantial, it is reasonable on the facts and it is not the result of passion or prejudice. "The size of the verdict alone is insufficient evidence of prejudice and passion on the part of a jury." Starkins, supra at 1218. In the 1986 Starkins case, the court refused to reduce an award of $900,000.00 on a defamation claim (with no media attention). The fact that the jury in this case did not find for Shaffer on all of his claims shows they were not "whipped into a frenzy." As shown above, there was ample evidence that Shaffer's loss of employment was inextricably intertwined with the defamation. Nowhere did Defendants illicit testimony of any distinction between the emotional distress or reputation damages from termination or defamation (or denial of Lberty Interest for that matter). Shaffer lost not only a job he loved, but a lifetime pursuit of public service. Shaffer was severely emotionally distressed to the point where it affected his relations with family and friends. The defamation was vastly published and republished. In support of their contention that Arizona courts "routinely ordered remittiturs in defamation cases. . ." Defendants cite only two Arizona cases: a 1951 case and the depublished decision in Schmitz v. Aston. See, 197 Ariz. 264, 3 P.3d 1184 (App. 2001). Contrary to Defendants' position, the application of remittitur is far from routine ­ indeed the standard only applies when the court's conscience is shocked by the outcome. Given the evidence, Shaffer urges the court to follow the Starkins court's conclusion: "While we recognize that the award is a very large one indeed, we do not find it to be outrageously excessive." Supra. B. Remittitur Is Improper on the Jury Award for Liberty Interest Damages

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of that in the instant case because the elements of damage for the two claims on which Shaffer prevailed are completely separate and distinct. Moreover, the Court already

instructed the jury that the Court would not allow Shaffer to recover more than the greatest amount awarded him. Thus Defendants' motion for remittitur is mooted. Indeed if

Defendants prevail on the remittitur of the liberty interest claim, it requires the Court accept Plaintiff's argument that the verdicts should be cumulative. As shown above, Defendants have, as a matter of law, waived any objection to the sufficiency of the evidence on damages by failing to move for JMOL on that issue. Having waived any argument regarding sufficiency of evidence of causation, Defendants are left only to complain that they don't like how the jury weighed such evidence. But the jury's verdict on a liberty interest claim will not be disturbed when the only argument against it "boils down to a contention that the jury made an error when it weighed the evidence." Brady v. Gebbie, 859 F.2d 1543 (9 th Cir. 1988). It is surprising that Defendants completely ignored this controlling 9th Circuit case law in favor of other circuits, districts and state courts in their motion for remittitur or new trial. Brady v. Gebbie involves the exact issue raised by Defendants here. In Brady, the plaintiff sued for a violation of liberty interest. Brady introduced evidence of his emotional distress caused by "the failure to get a hearing and the conditions surrounding the termination." Interestingly the Brady case expressly acknowledged that a "plaintiffs (sic) testimony that she suffered humiliation, embarrassment and anxiety was by itself sufficient proof of compensable psychological harm to uphold damages award." Id. Brady was awarded $300,000.00 on his liberty interest claim (and that was in 1988 dollars). Defendant, Gebbie moved for new trial/remittitur "that the jury's award of damages was not supported by the evidence and was excessive and grossly disproportionate." Id. Both the district court and the court of appeals refused to grant new trial or remittitur. The remedy for a failure to give Shaffer a name clearing hearing is two-fold: giving Document 149 11 Filed 11/03/2005 Page 11 of 13

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the hearing and awarding damages for failure to timely give it. First, "The remedy for a stigma-plus violation of a government employee's constitutional due process rights is a name-clearing hearing where the employee is given the opportunity to clear his name." Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004). The court did this by allowing Shaffer to present his defamation claim and the evidence clearing his name to the jury. 8 The second part of the remedy is to compensate for the damages flowing from violation of the liberty interest right. Brady v. Gebbie. In this case those damages include the defamation damages already sought and awarded on that count and the additional emotional distress suffered as a result of the denial of Shaffer's constitutional right to a name clearing hearing. Ironically, if Defendants get their wish, the court will then be compelled to face the concern Plaintiff repeatedly raised in arguments over jury instructions: that the verdicts must be added together. In other words, the amount of a remitted verdict (or the verdict from a new trial) on the discrete Liberty Interest damages will have to be added to the verdict for the Defamation claim. 1118-1124. Of course all this can be avoided by denying Defendants motion for remittitur/new trial. 9 V. CONCLUSION Defendants' motion for JMOL is improper and should be denied. Even if the court were to consider it, it should conclude that their was clear and convincing evidence of actual malice and damages. There is no basis or reason for remittitur/new trial. The court should deny defendant's motion. SUBMITTED this November 3, 2005

"[T]here has been nothing remo tely close to a name-clearing hearing until Mr. Shaffer walked into this courtroom and had an opportunity to con front evidence against him , present his evidence." 841:24-842:2. If the court does grant remittitur, it must also give Shaffer the option for new trial on damages. U.S. Constitution, 7 th Amendment.
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Shaffer\pleadings\Response to Motion for JMOL Remittitur or New Trial 001

R ICHARD J. H ARRIS L AW O FFICES, P.C. By: s/Richard J. Harris Richard J. Harris 4445 E. Holmes Ave., Suite 106 Mesa, AZ 85206 Copy of the foregoing electronically transmitted via the U.S. District Court's Electronic Case Filing System this November 3, 2005 and to: Jay Zweig Melissa Berrens Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants

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