Free Motion in Limine - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Cora Miles UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, Plaintiff, v. Cora Miles and Earl Scalet, Defendants. NO. CV-03-1819-PHX-JAT DEFENDANT CORA MILES' MOTION IN LIMINE NO. 2 TO EXCLUDE ANY EXHIBITS OR WITNESSES NOT DISCLOSED IN ACCORDANCE WITH THIS COURT'S ORDER SETTING FINAL PRETRIAL CONFERENCE

Defendant Cora Miles, through counsel, hereby moves in limine and pursuant to Fed. R. Civ. P.. 16(f) and this Court's September 7, 2006 Order Setting Final Pretrial Conference for the court to exclude any exhibits or witnesses proferred by Plaintiff which were not timely disclosed by Plaintiff. This Motion is supported by the following Memorandum of Points and Authorities and all pleadings on file with the Court. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND As this case was brought by a pro se incarcerated Plaintiff, the Rule 26 initial disclosure statements were not required pursuant to Fed. R. Civ. P. 26(a)(1)(E)(iii).

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On May 26, 2004, however, Defendants Frank Garcia1 and Cora Miles served their First Set of Interrogatories to Plaintiff Carlos Powell and their First Request for Production of Documents to Plaintiff Carlos Powell. Interrogatory No. 2, requested that Plaintiff "[p]lease identify all witnesses (including those listed above) and list the facts they will provide in support of the basis for your claims(s)." Exhibit 1. Likewise, Request for Production of Documents No. 1 requested that Plaintiff "[p]lease provide all documents you intend to use in evidence at trial." Exhibit 2. To date, Plaintiff failed to respond to either Defendant Miles' Interrogatories or Requests for Production. Moreover, on September 7, 2006 this Court ordered that "no later than fourteen (14) days before the submission deadline for the joint Proposed Final Pretrial Order, the parties shall exchange marked copes of all exhibits to be used at trial; any exhibit not marked and exchanged shall be precluded at trial." September 7, 2006 at 3. On November 6, 2006, counsel for Defendant Miles sent Plaintiff a letter regarding the upcoming deadline for exchange of drafts of the required pretrial submissions, offering to do the heavy lifting when it came to drafting the documents, and requesting receipt of Plaintiff's exhibits by November 15, 2006. Exhibit 3 (November 6 Letter from Timothy Bojanowski to Carlos Powell) Plaintiff replied to this letter via email on November 10, 2006. The same day, Defense Counsel replied that Plaintiff's statement that "our proposals are going to be filed" did not meet the requirements of this Court's order that the pretrial submissions be joint document. Exhibit 4 (November 10, 2006 e-mail from Michael Giardina to Ken Robert and Carlos Powell, with inadmissible information pursuant to Fed. R. Evid. 408 redacted from original e-mail from Ken Robert).
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Order dated

Once again, counsel explained that the parties were required to exchange

Plaintiff moved to voluntarily dismiss Defendant Garcia from this suit on May 21, 2004, and this Court granted that motion on May 27, 2004.
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exhibits no later than 14 days before the submission deadline, and attached a copy of this Court's Order for Plaintiff's convenience. Id. On November 20th, the fourteenth day before pretrial submissions are due to be filed, Defense Counsel set, via courier, a draft of Defendant Miles' Proposed Joint Final Pretrial Order, Proposed Jury Voir Dire Questions, Proposed Jury Instructions and a complete marked set of Defendants' Exhibits 1-40 via courier to both Plaintiff and Defendant Scalet. Exhibit 5 (November 20, 2006 letter from Michael Giardina to Carlos Arthur Powell and John Mayfield). After much calling and e-mailing, the parties convened a conference call at 10:00 AM on Monday, November 27th to discuss the final preparation of the pretrial submissions. Exhibit 6 at ¶3 (Affidavit of Michael Giardina). During that call, Mr. Powell indicated that he had several exhibits he wished to offer and witnesses to call. Id. at ¶5. It was explained by Defense Counsel that in order for the Court's December 4, 2006 deadline to be met, those documents must be received by Defendants Counsel no later than Thursday, November 30, 2006. Id. at ¶4. Mr. Powell agreed that it would not be a problem and it was clarified that Plaintiff would only need to send one copy to each Defendant's attorney. Id. Following the conference call, Mr. Powell confirmed that he had in fact received Defendant Miles' package sent November 20, 2006. Id. at 7. On Thursday, November 30, 2006, Plaintiff sent an e-mail to Defense Counsel "approving the content and form with Stipulation that I am allowed to amend at a later time." Exhibit 7 (November 30, 2006 e-mail from Charles Powell to Michael Giardina). Plaintiff further indicated that he's "ready for trial" and "as for list of

witnesses ... will be calling each and every individual who signed an affidavit." Id. Defense Counsel replied to Plaintiff's e-mail that they did not consent to allowing Plaintiff to amend any of the pretrial submissions after December 4, 2006 as such violated this Court's Order Setting Final Pretrial Conference, and asked Plaintiff to provide
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specific input and exhibits for the pretrial submissions. Exhibit 8 (November 30, 2006 email from Michael Giardina to Carlos Powell). Defense Counsel even agreed to extend the deadline as much as possible to allow Plaintiff to e-mail or fax his contributions, so that they could be included in the joint pretrial submissions. Id. Plaintiff did not reply until after the close of business on Friday, December 1, 2006. On December 1, 2006, Defense counsel sent draft documents to all parties for review. Exhibit 9 (December 1, 2006 e-mail from Michael Giardina to Plaintiff and John Mayfield.) That e-mail included explicit instructions to "read each document

carefully and completely" and explained that consent must be obtained no later than 2:00 PM local time, in order for the final documents to be formatted in accordance with the Order Setting Final Pretrial Conference for electronic submission. Id. Additionally, the option for further input was left open throughout the weekend. Id. At 7:08 PM, on December 1, 2006, Plaintiff confirmed receipt of the final draft of the documents and indicated that he would review them prior to the Monday, December 4, 2006 deadline. Exhibit 10 (December 1, 2006 7:08 P.M. e-mail from However, only eleven minutes later, Plaintiff

Charles Powell to Michael Giardina).

acknowledged receipt, but refused to respond to any of, Defense Counsel's November 30, 2006 series of questions regarding the Joint Proposed Final Pretrial Order. Plaintiff's message, in it's entirety states: Adapt whatever, I `m [sic] not able to continue sending documents, the last document cost me $18.95. Therefore file whatever without my consent. I filed copies with the courts. I asked for extra time and did no received [sic] response. Exhibit 11 (December 1, 2006 7:19 P.M. e-mail from Charles Powell to Michael Giardina) (emphasis added). Possibly referring to his proposed exhibits or contentions of disputed facts and law, Plaintiff stated that he filed copies with the Court, but did not sent a copy, prior to December 4, 2006 to counsel for Defendant Miles. See id. Moreover,

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Plaintiff did not even provide any textual revisions or even witness names using e-mail, which is a cost-free forum of communication. On December 4, 2006, Plaintiff sent Defense Counsel a settlement demand. Defense Counsel responded that settlement discussions did not obviate the need to complete the pre-trial submissions in accordance with the Order Setting Final Pretrial Conference. Exhibit 12. (December 4, 2006 1:15 P.M. e-mail from Michael Giardina to Carlos Powell with inadmissible information pursuant to Fed. R. Evid. 408 redacted from previous message). Defense Counsel further advised that they needed to know Plaintiff's position regarding the filing of the Joint Proposed Final Pretrial Order, the Joint Proposed Jury Instructions, the Stipulated Statement of the Case and the Joint Master List of Witnesses for Voir Dire. Id. Plaintiff replied that he "consent [sic] in the courts [sic]" with counsel for Defendants Miles and Scalet. Exhibit 13 (December 4, 2006 1:30 P.M. e-mail from Charles Powell to Michael Giardina, with inadmissible information pursuant to Fed. R. Evid. 408 redacted from previous message). Plaintiff further advised that the "list of witnesses and addresses will be delayed," but added Mr. Salvador, Paul Prymich, Mr. Garcia and Camacho David Alba to his list of witnesses. Id. According to Plaintiff, their testimony would be a repetition of their previous affidavits. Id. Plaintiff further advised "that all of the named witnesses filed with the court on my [behalf] except for one that passed away will [b]e on the list." Id. II. LAW AND ARGUMENT Plaintiff may not present evidence disclosed in direct contravention of the Court's order, without any justification or excuse. See Fed. R. Civ. P. 37(b)(2)(B). Rule 37 specifically provides an evidentiary exclusion where a party fails to adhere to a court's orders regarding discovery without substantial justification, which thwarts the purpose of setting time limits on discovery and deprives the opposing party of any opportunity to
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conduct a proper investigation. See Semi-Tech Litigation LLC v. Bankers Trust Co., 219 F.R.D. 324, 325 (S.D.N.Y. 2004) (precluding party from using evidence disclosed on the eve of completion of all discovery under court's orders, thus preventing opposing party from conducting any meaningful follow-up and investigation); King v. Georgia Powel Co., 50 F.R.D. 134, 135-36 (N.D. Ga. 1970) ("The purpose of setting a time limit on discovery in advance of trial is to assure both sides an opportunity immediately before trial to engage in orderly, final trial preparation.") Here the situation is more egregious than just a failure to respond prior to discovery. In the instant case, Plaintiff has not only disregarded Defendant's discovery requests, but also disregards the deadlines of the Order Setting Final Pretrial Conference and failed to disclose the names of all of his witnesses, contentions regarding what Defendants believe are the disputed facts and issues of law to be decided at trial, and any exhibits he wishes to enter in evidence, instead offering to agree to what Defendant's prepared with the Stipulation that he be permitted to amend them at a later time. Exhibits 7, 13. This is exactly the abuse and prejudice which has previously justified sanctions, including dismissal of a pro se litigants §1983 action. See Tyler v. Iowa State Trooper Badge No. 297, 158 F.R.D. 632, 636-38 (N.D. Iowa 1994). Pro se Plaintiffs, while given some leeway, may not disregard court rules and orders with impunity. See e.g. Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (upholding dismissal for failure of pro se Plaintiff to comply with local rule requiring pro se plaintiffs to keep court apprized of their addresses). Plaintiff's disregard for the clear language of this Court's Order Setting Final Pretrial Conference, with a desire to agree to the filings, with the provision of unilaterally amending them at some undetermined later date irreparable prejudices Defendant Miles. Plaintiff won't even identify with specificity his witnesses, stating only that he "will be calling each and every individual who signed an affidavit."
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Exhibit 7.

When pushed for more detail, Plaintiff only provided an
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extremely limited list of "major witnesses" and advised that "the list of witnesses and addresses will be delayed." Exhibit 13. Defendant Miles, however, is only aware of those Affidavits Plaintiff attached in his prior filings with the Court. Defendant Miles cannot possibly identify which other individuals may have "signed an affidavit" for Plaintiff. Moreover, Plaintiff's never received from Plaintiff an affidavit from a Mr. Garcia or Mr. Camacho David Alba.2 See Defendant Cora Miles' Motion in Limine to Exclude Written Inmate Hearsay Statements at 2. When the named "major witnesses" do not even match the names of those from whom Plaintiff has previously solicited and filed affidavits, Defendant Miles can not even be certain that the named witnesses were ever at the Eloy Detention Center. Without knowing sufficiently in advance of trial who exactly Plaintiff intends to call or what testimony Plaintiff intends to elicit, Defendant Miles is prohibited from adequately preparing to cross-examine these witnesses. As this Court is all too aware, this case is almost four years old. Like Plaintiff, Defendant Miles eagerly awaits her day in court. However, permitting any late disclosures of Plaintiff's witnesses or exhibits unfairly and irreparably will prejudice Defendant Miles. The court anticipates scheduling trial in this matter in January or February 2007. Counsel for Defendant Miles is also heavily involved in discovery in several other cases as well as engaged in pretrial preparation in another complex case pending before Judge Campbell. Should Plaintiff be permitted to identify his witnesses or produce any exhibits at the 11th hour, Defendant Miles will not have sufficient available time to locate any impeachment witnesses or exhibits, which she is entitled to present to the jury.

However, Defendant Miles did receive a June 2004 Affidavit of a Candelario Camacho-Garcia.
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III.

CONCLUSION Based upon the foregoing, Defendants respectfully request the Court enter

an Order expressly precluding the admission of any exhibits and any witnesses testimony Plaintiff failed to disclose in full compliance with this Court's September 7, 2006 Order Setting Final Pretrial Conference. RESPECTFULLY SUBMITTED this 4th day of December, 2006 JONES, SKELTON & HOCHULI, P.L.C.

By /Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Cora Miles CERTIFICATE OF SERVICE I hereby certify that on December 4, 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: John R. Mayfield U.S. ATTORNEY'S OFFICE 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Attorney for Defendant Earl Scalet /// /// /// /// /// ///
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________________________________________________________________ I hereby certify that on December 4, 2006, I served the attached document by: mail on the following, who are not registered participants of the CM/ECF System: Carlos Arthur Powell C/O AMICUS CURIAE ASSOCIATION FOUNDATION ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Pro se Plaintiff

s/Dianne Clark

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