Free Response in Support of Motion - 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 22 23 24 25 26

GREENBERG TRAURIG, LLP ATTORNEYS AT LAW SUITE 700 2375 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85012 (602) 445-8000

John R. Clemency, SBN 009646 Tajudeen O. Oladiran, SBN 021265 Attorneys for Plaintiff, SG NEW YORK.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA SG NEW YORK LLC, a Delaware limited liability company, and the successor-in-interest to Pennysaver News of Brookhaven, Inc. and Carrier Pigeon of Long Island, LLC, Plaintiff v. HARTFORD CASUALTY INSURANCE COMPANY, an Indiana corporation, Defendant.
The following Reply is filed by Plaintiff, SG New York LLC ("SGNY" or "Plaintiff") in support of its "Plaintiff's Motions In Limine," dated July 25, 2005. 1. Reply In Support of Motion In Limine To Exclude All References To Wells Fargo From The Trial In "Defendant's Response To Plaintiff's Motion In Limine Regarding Reference To Wells Fargo," dated August 1, 2005 ("Defendant's Response Regarding Wells Fargo"), Defendant alleges that: (1) evidence demonstrating that Wells Fargo acquired the assets of Pennysaver News is relevant under Rules 401 and 402 of the Federal Rules of Evidence . . ., and (2) Plaintiff does

NO. CV 2003-1207-PHX-SMM REPLY IN SUPPORT OF PLAINTIFF'S MOTIONS IN LIMINE

phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

Filed 08/05/2005

Page 1 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

not suffer unfair prejudice under FRE 403." See Defendant's Response Regarding Wells Fargo, p. 1. Defendant contends that evidence regarding the ownership of SGNY tends to rebut testimony that SGNY did not have sufficient funds to replace the telephone system damaged by the flood. Essentially, Defendant intends to argue that since SGNY is owned by a bank, SGNY cannot argue that it lacked the funds to replace its damaged telephone system. See Defendant's Response Regarding Wells Fargo, p. 2. Defendant's argument is irrelevant under Rules 401 and 402 of the Federal Rules of Evidence, or prejudicial under Rule 403 of the Federal Rules of Evidence. SGNY is a separate legal entity from Wells Fargo Bank; consequently, the fact that Wells Fargo Bank may have possessed the funds to replace the telephone system had no effect on SGNY's financial ability to replace the damaged telephone system. Any reference to Wells Fargo Bank's financial means, as proposed by Defendant, is legally incorrect, and can only serve to prejudice the jury against Plaintiff, SGNY. 2. Reply In Support of Motion In Limine To Reject Certain Jury Instructions Proposed By The Defendant Defendant's response to "Plaintiff's Motion In Limine To Reject Certain Jury Instructions Proposed By The Defendant" addressed only one of Defendants' proposed jury instruction, Defendant's proposed jury instruction PJI 1:55 ­ regarding an alleged statement by Plaintiff to Bruce Schlosser. See "Defendant's Response To Plaintiff's Motion In Limine

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

G REENBERG T RAURIG

LAW OFFICES

Regarding Bryn Sarvis Email," dated August 1, 2005 ("Defendant's Response"). In Defendant's Response, Defendant contends that the Sarvis E-mail should be admitted because "(1) it is independently relevant to the investigation of Plaintiff's claim by its own expert

phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

-2Filed 08/05/2005

Page 2 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

witness, and therefore is not offered for the truth of the matter asserted in the e-mail; and (2) even if hearsay, the e-mail is a statement against interest made by Plaintiff's authorized agent under Federal Rule of Evidence ("FRE") 801(d)(2)." Defendant's Response, p. 1. As shown below, Defendant's arguments are without merit; the Sarvis E-mail is hearsay; and Defendant's proposed jury instruction regarding the Sarvis E-mail is improper. Defendant's Response is based upon numerous incorrect assertions: (i) Defendant incorrectly asserts that Bryn Sarvis was "Plaintiff's former human resources director. However, the Sarvis E-mail attached to Defendant's Response as Exhibit "1" identifies Bryn Sarvis as a "HR Generalist." Bryn Sarvis was not an executive of the Named Insured, and Defendant's assertions to that effect are false. (ii) Defendant alleges that the Sarvis E-mail was the impetus for Bruce Schlosser's

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

G REENBERG T RAURIG

LAW OFFICES

(Plaintiff's public adjuster) investigation of the effect of 9/11 attacks on Plaintiff's damages. However, in the portion of Schlosser's deposition transcript attached to Defendant's Response as Exhibit "2," Schlosser states that his investigation of the effect of 9/11 occurred in response to Defendant's claim that the Named Insured's telephone systems were experiencing difficulties due to 9/11: Q. Judging by the substance of the e-mail [the Sarvis E-mail], it looks as though Ms. Sarvis was responding to an inquiry you had regarding what she calls the 9/11 claim? A. Yes. This issue had come up, as I believe, from the best of my recollection, The Hartford said there were phone difficulties ­ the phone difficulties in our claim because of 9/11. Deposition of Bruce Schlosser, dated November 17, 2004, page 70, line 20 through page 71, line 3.

phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

-3Filed 08/05/2005

Page 3 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

(iii)

Defendant argues that the Sarvis E-mail should be allowed because it is

impeachment evidence; however, as shown by Plaintiff's motion in limine, the Sarvis E-mail is a statement by Bryn Sarvis, made outside of court, and is offered to prove the truth of the matter asserted therein, there is no hearsay exception for impeachment evidence. Furthermore,

Defendant questioned other witnesses (e.g. Richard Megenedy and Fred Jenkins) about the effect of the 9/11 attacks on the Named Insured's telephone system and, if needed, Defendant has other testimony for impeachment on this issue. (iv) Defendant alleges that the Sarvis E-mail is admissible under Fed.R.Evid.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

801(d)(2), as a party statement against interest, made by a person authorized by the party to make the subject statement. However, although Defendant alleges that the Sarvis E-mail is admissible under Rule 801(d)(2), Defendant does not specify which of the five subsections allows its admission. In support of its allegation that the Sarvis E-mail is admissible under Fed.R.Evid. 801(d)(2), Defendant alleges that "Megenedy surmises that Sarvis probably was directed to contact Schlosser and respond on behalf of Plaintiff to his inquiry regarding 9/11 telephone down time. (See Deposition of Richard Megenedy at pp. 106-108, attached hereto as Exhibit 3)." However, a review of the portion of the Megenedy Deposition attached by Defendant as Exhibit "3" does not support Defendant's assertions. In the Megenedy Deposition, when

G REENBERG T RAURIG

LAW OFFICES

Defendant's counsel questions Megenedy about the Sarvis E-mail, Megenedy does not, in any way, suggest that he directed Sarvis to contact Schlosser and speak for the Named Insured: Q. Well, let me show you what I'm looking at. Maybe I'm interpreting this incorrectly. Let me know when you've had a chance to look at that, Rich. (7 June 2002 e-mail from Bryn Sarvis to B. Schlosser was marked as Exhibit 10 for identification.)
phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

-4Filed 08/05/2005

Page 4 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

A.

I have no recollection of this whatsoever.

Q. I know that the e-mail is not addressed to you, and it doesn't indicate that you were cc'd on it, so I wouldn't expert you to have personal knowledge of the e-mail itself. But tell me, who is Bryn Sarvis? A. At the time, she was the HR person here. She was human resources for Marks-Ferber publications [the Named Insured's parent company]. Q. Did she work here at the Pennysaver office?

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

A. Both. She worked in Arizona. And then after - - and I do not recall the date when she actually transferred here, when she came here. I don't even recall whether or not she was here for this flood or not. And if anything, this was probably a directive from Steve Ferber. I have no knowledge of it. See Deposition of Richard Megenedy, dated September 13, 2004, page 106, line 17 through page 107, line 16 (emphasis added). As shown by his deposition testimony, Megenedy did not direct Bryn Sarvis to contact Schlosser and speak for the Named Insured. In fact, Defendant has not shown that Bryn Sarvis was directed by anyone to contact Schlosser and speak for the Named Insured. Defendant "surmises" this crucial element. Lastly, as stated above, Defendant does not specify which of the five subsections of Fed.R.Evid 801(d)(2) allows the admission of the Sarvis E-mail. Each subsection different proof. For example: A. subsection (A) requires that Defendant prove that someone in the Named At most,

G REENBERG T RAURIG

LAW OFFICES

Insured's management designated Bryn Sarvis as a representative to speak for the Named Insured on the subject covered by the Sarvis E-mail. See e.g. Stagman v. Ryan, 176 F.3d 986, 996 (7th Cir. 1999) ("To establish that the statement comes within the scope of Rule 801(d)(2)(A),

phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

-5Filed 08/05/2005

Page 5 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

Stagman [the party offering the disputed statement] must present independent evidence that Ludwig [the person that made the statement] was Ryan' [the party against whom the statement s will be used] representative . . . The problem is that while the record is clear that Ludwig is an employee of the AG' Office of which Ryan is the head, Stagman presents no evidence that Ryan s designated Ludwig as his representative. Therefore, the statement is not admissible under this subsection."). 801(d)(2)(A); B. subsection (B) requires that the opposing party manifest an adoption or In this case, Defendant has not complied with the requirements of Rule

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

belief in the truth of the subject statement. In this case, the statement in the Sarvis E-mail is disputed by Plaintiff; C. under subsection (C), "authority in the context of 801(d)(2)(C) means

G REENBERG T RAURIG

LAW OFFICES

`authority to speak' on a particular subject on behalf of someone else" Kirk v. Raymark Industries, Inc., 61 F.3d 147, 163 (3rd Cir. 1995) (as shown above, Defendant has not shown that Bryn Sarvis had authority to speak, and on whose behalf she was speaking); D. subsection (D) "requires the proffering party to lay a foundation to show

that an otherwise excludable statement relates to a matter within the scope of the agent' s employment." Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986); Defendant has not shown that the statement in the Sarvis E-mail was within the scope of Bryn Savis' employment as a human resources generalist; and E. Defendant. subsection (E) requires a conspiracy, which is not alleged by the

phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

-6Filed 08/05/2005

Page 6 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

As shown above, Defendant has not satisfied the requirements for admission of the Sarvis E-mail under any subsection of Rule 801(d)(2); consequently, the Sarvis E-mail should not be admitted as an exhibit at trial. CONCLUSION Plaintiff respectfully requests that the Court enter an Order in Limine: (1) allowing Plaintiff to use the depositions of its former employees, Richard Megenedy, and Fred Jenkins, instead of live testimony, at the upcoming trial of the above captioned matter (Defendant does not oppose the use of these depositions); (2) precluding Defendant, its counsel and witnesses from making reference to and/or introducing evidence regarding the ownership of SGNY by Wells Fargo Bank; and (3) precluding Defendant from introducing the Sarvis E-mail as an exhibit at trial or discussing the Sarvis E-mail at trial; and (4) Rejecting Defendant proposed jury instructions (described in Plaintiff's Motions In Limine, dated July 25, 2005).

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

G REENBERG T RAURIG

LAW OFFICES

RESPECTFULLY SUBMITTED this 5th day of August, 2005. GREENBERG TRAURIG, LLP By: /s/ Tajudeen O. Oladiran
John R. Clemency Tajudeen O. Oladiran Attorneys for Plaintiff

ORIGINAL of the foregoing filed this 5th day of August, 2005. A COPY of the foregoing forwarded via e-mail ([email protected])
phx-fs1\1506436v01\8/5/05

Case 2:03-cv-01207-SMM

Document 79

-7Filed 08/05/2005

Page 7 of 8

1 2 3 4 5 6 7 8 9
2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

this 5th day of August, 2005 to: Eric A. Mark, Esq. THE MARK LAW FIRM 14210 West Piccadilly Goodyear, Arizona 85338 (623) 210-4600 office (623) 547-0105 fax Attorneys for Defendant Insurance Company Casualty Company /s/ Susan Vasquez

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
phx-fs1\1506436v01\8/5/05

G REENBERG T RAURIG

LAW OFFICES

Case 2:03-cv-01207-SMM

Document 79

-8Filed 08/05/2005

Page 8 of 8