Free Motion in Limine - District Court of Arizona - Arizona

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Thomas A. Maraz (Bar No. 010993) Maureen A. Welsh (Bar No. 020954) GALLAGHER & KENNEDY, P.A. 2575 East Camelback Road Phoenix, Arizona 85016-9225 (602) 530-8000 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Physical Excellence, Inc., an Arizona corporation; Body-Of-Change, Inc., an Arizona corporation; Body Of Change International, L.L.C., a Delaware limited liability company, Plaintiffs, vs. Stephen Dow and Linda Dow, husband and wife; Dan Fahey and Jane Doe Fahey, husband and wife; Stephen Dow d/b/a Achieve Fitness; Beyond Fitness, L.L.C., a North Carolina limited liability company; John Does 1-V; Jane Does 1-V; Black And White Corporations 1-V, Defendants. Defendants Stephen Dow, Linda Dow, Dan Fahey, Stephen Dow d/b/a Achieve Fitness and Beyond Fitness--North Carolina, L.L.C., hereby request this Court to enter an Order in Limine, pursuant to Rule 408, F. R. Evid., precluding Plaintiffs from offering testimony or any other evidence of conduct or statements made at a December 2003 lunch meeting attended by Defendants Dow and Fahey, Mr. Gaston and Mr. Gralnick. The purpose of that meeting was to discuss settlement of the case. See 3/1/04 Hearing Transcript, p. 14, ll. 20-24, attached hereto as Exhibit A. No. CIV 03-0150-PHX-EHC DEFENDANTS' SEVENTH MOTION IN LIMINE TO STRIKE EVIDENCE REGARDING SETTLEMENT DISCUSSIONS

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1293931/17186.0001 Case 2:03-cv-00150-EHC

Document 235

Filed 08/26/2005

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In his deposition, Mr. Gaston testified as to the contents of that meeting. See Gaston deposition testimony, pp. 89, ll. 3-25; 90, ll. 1-18, attached as Exhibit B. The subject of that conversation was the lawsuit and suggestions by Mr. Dow as to how to resolve the lawsuit, particularly the alleged recruiting. Id. Mr. Gaston testified that other than "small talk", the lawsuit and settlement discussions, there was nothing else discussed. Id. at p. 90, ll. 15-18. Rule 408, F. R. Evid. precludes from evidence conduct or statements made in compromise negotiations. Plaintiffs admit the purpose of the lunch was to discuss settlement. See Exhibit A. Plaintiffs further admit that the meeting concerned mainly compromise negotiations regarding the alleged recruiting. See Exhibit B. Consequently, under Rule 408, Plaintiffs should be precluded from admitting evidence or testimony regarding any conduct or statements made by those present at the lunch. RESPECTFULLY SUBMITTED this 26th day of August, 2005. GALLAGHER & KENNEDY, P.A.

By: /s/ Maureen A. Welsh Thomas A. Maraz Maureen A. Welsh 2575 East Camelback Road Phoenix, Arizona 85016-9225 Attorneys for Defendants ORIGINAL of the foregoing electronically filed via the CM/ECF system this 26th day of August, 2005, with: Clerk of Court United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003

1293931/15930.0003 Case 2:03-cv-00150-EHC

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COPY of the foregoing hand-delivered this 26th day of August, 2005, to: The Honorable Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003 COPY of the foregoing electronically mailed via the CM/ECF system this 26th day of August, 2005, to: Russell A. Kolsrud, Esq. Ryan J. Lorenz, Esq. Norling, Kolsrud, Sifferman & Davis, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 Attorneys for Plaintiffs /s/ Jenifer L. Mills

1293931/15930.0003 Case 2:03-cv-00150-EHC

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