Free Memorandum - District Court of Arizona - Arizona

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 (Defendant's Motion to Dismiss) 18 19 20 21 22 23 24 25 Proceedings taken by Digital Sound Recording Transcript prepared by Transcriptionist Transcriptionist: Kim R. Moll 401 W. Washington, Suite 312 Phoenix, Arizona 85003 (602) 322-7252 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE VIRGINIA A. MATHIS UNITED STATES MAGISTRATE JUDGE JOE RAMIREZ and ANA RAMIREZ, ) individually and as Parents ) and Legal Guardians of JOSE ) RAMIREZ, JR., ) ) Plaintiffs, ) ) vs. ) ) TANYA SOTO and JOHN DOE SOTO,) wife and husband; ANNIE ) PRESTON and JOHN DOE PRESTON,) wife and husband; CLAY ) KLAVITTER and JANE DOE ) KLAVITTER, husband and wife; ) GLENDALE UNION HIGH SCHOOL ) DISTRICT NO. 205, ) ) Defendants. ) _____________________________) THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

No. CV04-2908-PHX-ROS

Phoenix, Arizona June 7, 2005 3:31 p.m.

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2 1 2 For the Plaintiffs: 3 4 5 For the Defendants: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Steven D. Leach, Esq., Esq. JONES, SKELTON & HOCHULI 2901 N. Central Avenue Suite 800 Phoenix, Arizona 85012 602-235-7189 Edward D. Fitzhugh, Esq. LAW OFFICE OF EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285 480-752-2200 APPEARANCES:

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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 first. Your Honor. THE COURT: Okay. Good afternoon. P R O C E E D I N G S (Commenced 3:31 p.m., June 7, 2005.) THE COURT: THE CLERK: Good afternoon. Please have a seat.

Civil case number 04-2908, Ramirez

versus Soto, on for oral argument on defendants' motion to dismiss. THE COURT: record, please. MR. FITZHUGH: behalf of plaintiffs. MR. LEACH: Steven Leach on behalf of defendants, Edward Fitzhugh appearing on May I have appearances for the

Mr. Leach, this is your motion, so you get to go We're here on the motion to dismiss. MR. LEACH: Thank you, Your Honor.

Your Honor, I think our position here is pretty straightforward. We believe that this is -- this claim is This case has been Plaintiff

really a form of horizontal appeal.

going on for several years before Judge Silver.

sought to amend the complaint to add, essentially, the claim that now has been filed before you. Judge Silver, as you've

seen if you've looked at the record, reviewed the evidence presented at the time. decision. It was not merely a procedural

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4 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 When we objected to the amendment, she substantively reviewed the evidence and declined to allow the amendment, feeling that there was insufficient evidence to support the claims. That should have been the end of it. Instead, we

have a horizontal appeal to this Court, apparently asking, in effect, that this Court reconsider the issue. think it presents several problems. And I

It presents the problem

of maybe a lack of respect for the sanctity of the initial ruling, and it also presents the problem of having parallel cases that really arise out of the same facts. Yes, this is somewhat of a different claim, but it certainly arises out of the same facts, presenting the specter of completely contrary conclusions. You could have

one jury find, for example, since this all arises out of the alleged abuse or attack on plaintiff, Jose Ramirez, that one Court says there wasn't any. That may be in Judge Silver's.

And then in this case, we have a jury that decides that there was, and that these people are liable for failing to report it. I think that the way to handle this because we do have a res judicata effect, we had a substantive ruling on a prior case, that is, the motion to amend, and plaintiff has procedural options available, if he believes that there's new evidence as he's claiming, that could be presented to

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5 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 it's two -THE COURT: It has to be a judgment on the merits. MR. FITZHUGH: And then a final judgment. So Judge Silver for reconsideration of the motion to amend. Or, as several of the cases that we cited to the Court recognized, he has the option of appealing the denial of the motion to amend at the appropriate time. But I don't believe that having this case going at a parallel time is the appropriate way to handle it. THE COURT: MR. LEACH: THE COURT: Okay. Thank you.

Thank you, Your Honor. Mr. Fitzhugh. Thank you, Your Honor.

MR. FITZHUGH:

As stated in the pleadings, Your Honor, in order to have res judicata, certain essential elements have to be met, and one of them has to be that the ruling has to be -the ruling has to be based on the merits. THE COURT: It has to be a judgment on the

merits, and we don't have a judgment on the merits. MR. FITZHUGH: No, Your Honor, we don't have --

and the Ninth Circuit follows, I think, the restatement -follows the restatement of judgments. I think it's 27 or 28

that says a final judgment, or I think they distinguish it as being from an appealable judgment. But at any rate,

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6 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 still a final judgment, and that's not what we have here. We cited the record from Judge Silver that said, Well, I don't know if I believe this boy, but -THE COURT: She said, There's no motion to amend I went through and read it, and

today, is what she said.

she keeps saying, I'm not going to grant the motion to amend today. denied. It is speculative. The motion to amend today is

It may occur later after the other depositions have At this point, I'm going to deny the motion to

been taken. amend.

But this -- you know, this raises the whole -- I don't think this is res judicata. I don't think there's any

way this is res judicata because to have that, you have to have a judgment on the merits, and there's no judgment on the merits. There is a denial, without prejudice, of a That's not a judgment on the merits.

motion to amend.

What disturbs me about this is that you didn't go back and again assert your motion to amend to Judge Silver and take care of it in that case. are splitting causes of action. You're splitting -- you You're trying to do an end

run around Judge Silver, and that is not -- that just strikes me as being wrong -MR. FITZHUGH: THE COURT: Well --

-- to have two causes of action going

in two different courts that are related -- very related --

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7 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 don't you? say, Okay. and to do it because you didn't get your motion to amend granted. Now, I realize that you don't want to go back and Well, here, I have some additional evidence and

I want to move to amend, and risk that she will deny it again, and then you'll have to wait until you get a final judgment and appeal that. long time to get there. procedurally correct. MR. FITZHUGH: Well, Your Honor, I think -- first I realize that would take you a But I also don't think this is

of all, I think there is a strong position that this is a separate and distinct case because it's separate parties. Now, I agree with you that, essentially, we're going to go over the same facts in both cases. THE COURT: I agree with that.

Well, you have one common party,

The Glendale Union High School District Number

205, isn't that party common to both causes, both actions? MR. FITZHUGH: Well, it is, but in this case this And, you know, if we're

is against the individual teachers. going to split hairs -THE COURT: defendant -MR. FITZHUGH: THE COURT: Yes.

But it's also against the same

-- Glendale Union High School. Yes, Your Honor. It's true, and

MR. FITZHUGH:

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8 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 I'm not trying to argue with you, because you're right, Your Honor. You're absolutely right. And to say this -- I mean,

there is a great amount of overlapping facts, although the claim against the teachers is actually after the assault, which is the basis of the first lawsuit. THE COURT: I understand that. And I understand

your argument that you didn't have this cause of action when you filed in Judge Silver's court. It is something that you

discovered through the deposition, and you think you now have more evidence to support it than you did when you went to Judge Silver, which, again, raises the specter of the proper procedural mechanism. To do this would have been to

go in to her and ask to move to amend again. MR. FITZHUGH: Well, two things: at the time,

Judge Silver was not -- not on the bench, and Judge Strand was more or less baby-sitting the case and whatever came up. Secondly, Your Honor, and to be candid with you, I -- I seriously disagree with Judge Silver's basis for her reason to deny the motion to amend. THE COURT: what you're saying? MR. FITZHUGH: THE COURT: Exactly, Your Honor. Exactly. Prejudging your evidence, is that

You're saying she should have allowed

you to amend, and then they could have brought their motion for summary judgment, and there could have been a decision

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9 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 at that point in time as to whether or not there was sufficient evidence to go forward. MR. FITZHUGH: Yes, Your Honor. Well, certainly that, and then --

I'll -- I'll agree with you on that. Well, I don't think it matters The bottom line

THE COURT:

whether I agree with you or not about that.

is now we have this awkward situation where you have a cause of action pending before me that really should be with Judge Silver. And I think this case ought to be, at a minimum,

transferred to her so that those two can be handled at the same time. MR. FITZHUGH: THE COURT: Yes, Your Honor.

And what would happen, typically,

when you have two causes of action in a related case like this, if a motion to transfer is made, the higher number case would be transferred to the lower number case. that probably, at a minimum, should happen. MR. FITZHUGH: Well, and that -- from what you And so

say, Judge, that's most likely what is going to happen, Your Honor. But for the record, I would still maintain that the cause of action against these defendants, while there are some overlapping facts, predominantly the cause of action is after the assault, which is the basis of the first cause of action, and not the second. But, yes, there would

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10 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 be a lot of overlapping facts, a lot of overlapping discovery. And if you do transfer it to Judge Silver, then do we just go over this again, I guess, the motion to dismiss, with Judge Silver? THE COURT: going to happen. Well, you know, I don't know what's

This is -- I've looked at this, I've read And I tell you this:

the cases, and I've thought about it.

from the research that I have done, the present motion to dismiss is going to be denied because this is not res judicata. There is no judgment on the merits. Now, the question is: Okay?

Is there case law out

there that would support a motion to dismiss because you've split a cause of action. research. I don't know. I haven't done that

And, you know, I'm not going to litigate this or I'm telling you the motion

tell you how to litigate this.

to dismiss that's pending right now is denied because I do not find the second element of res judicata that there was a prior judgment on the merits. MR. FITZHUGH: This cause of action, I believe to

have an argument about splitting the cause of action, it would be that the plaintiff had the established claim at the time he filed his lawsuit, and this claim was not established until lots of depositions were taken a year and a half after the original filing.

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11 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 case to -THE COURT: Right. No, I understand, and I And I'm not sure --

understand the position that you're in.

I don't know what's going to happen if the defense goes out there and does the research to see -- not on res judicata, but on splitting an action like this, what -- there may very well be case law that says that you can do that once the amendment's been denied or that you can do that if you have separate parties, distinct parties. See, the key to this case is there's no judgment in the other case. If Judge Silver had already ruled in

that case and there was a judgment, their motion would be well taken because there would be a judgment on the merits. And then your remedy would have been to appeal to the Ninth Circuit and argue that Judge Silver incorrectly denied your motion to amend, that she should have granted that, and she should have given you that opportunity. And then if the Ninth Circuit agreed with you, they would reverse it and send it back, and you'd have a cause of action pending in front of her. with Judge Silver, that would be it. But that would -- you know, if there was a judgment in that other case, then their motion would be proper. But we just don't have that. MR. FITZHUGH: So -If they agreed

Are you going to transfer this

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12 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 THE COURT: I'm not going to transfer it. I'm

not going to transfer it because I don't know if that's proper and whether Judge Silver would want that or not. going to leave that to the defense. I'm

If the defense wants it

transferred, they can file the motion to transfer, and you would file it in both cases. And as I say, if it's granted

by Judge Silver, it would be transferred to her case, which is the lower number. But I'm not going to do that independently because I don't know if that's proper or not. I mean, I

think it clearly could be transferred if she wants the case, but I'm not saying -- I don't know. research. I haven't done the

I'm not saying that you just don't have a right

to do what you've done, because you may well. But, to me, procedurally, the proper thing would have been to go back to her and ask once again to amend and put forth your new evidence to support this and give her an opportunity to rule on that one way or the other. MR. FITZHUGH: THE COURT: Yes, Your Honor.

Okay.

If there's anything else you want to put on the record, you can do it. I'm not going to grant -- I'm not

going to grant your motion to dismiss, and I think I've explained to you adequately why. I understand your position, but the difference

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13 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 being is that there's still a pending action in front of Judge Silver, with no final judgment on the merits. MR. LEACH: THE COURT: All right. I understand, Your Honor. Okay. Thank you. Thank you, Judge.

MR. FITZHUGH: MR. LEACH:

Thank you, Your Honor.

(Concluded 3:44 p.m., June 7, 2005.)

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14 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 _________________________ Kim R. Moll 2006. DATED at Phoenix, Arizona, this 26th day of January, I, Kim R. Moll, court-approved transcriber, certify that the foregoing is a correct transcript from the official electronic sound recording of the proceedings in the above-entitled matter. C E R T I F I C A T E

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