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

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Michael D. Moberly ­ 009219 Andrea G. Lisenbee - 019882 Attorneys for Defendant/Counterclaimant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA AMMAR HALLOUM, Plaintiff, vs. INTEL CORPORATION, Defendant. INTEL CORPORATION, Counterclaimant, vs. AMMAR HALLOUM and SAWSAN HAMAD, Counterdefendants. RESPONSE Defendant/Counterclaimant Intel Corporation (the "Company") hereby responds to Plaintiff's Motion in Opposition to Defendant's Supplemental Disclosure Statement, and requests that the Court deny the plaintiff's motion for the reasons set forth in the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES The plaintiff's motion asks the Court "not to accept" the Company's supplemental disclosure submitted on February 13, 2006. Because there is no provision
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION IN OPPOSITION TO DEFENDANT'S SUPPLEMENTAL DISCLOSURE STATEMENT

No. CIV-02-02245-PHX-EHC

673058.1 3/9/2006 Case 2:02-cv-02245-EHC

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in the applicable rules for the Court to accept or reject a disclosure statement, which is essentially a discovery document, the plaintiff's motion presumably is a request that the Court refuse to admit in evidence at trial the underlying document produced by the Company with the disclosure. The document at issue is the Final Decision and Order ("Decision") of the United States Department of Labor's Administrative Review Board (the "Board") in ARB Case No. 04-068 (ALJ Case No. 2003-SOX-7). The Decision, a copy of which is attached hereto as Exhibit 1, affirms the administrative law judge's prior decision in favor of the Company in connection with the plaintiff's claim under the Sarbanes-Oxley Act. The administrative law judge's decision, in turn, provided the basis for the Court's estoppel rulings when it granted, in part, the Company's motion for summary judgment. See Order dated March 30, 2005. Under these circumstances, the Decision not only should be admitted in evidence, but the Court should take judicial notice of it, just as it did in the case of the administrative law judge's prior ruling that is affirmed in the Decision. See Fed. R. Evid. 201(d) ("A court shall take judicial notice [of

adjudicative facts] if requested by a party and supplied with the necessary information."); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) ("[W]e may take judicial notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.") (internal quotation marks and citation omitted). In this respect, the Board held that Intel proved by clear and convincing evidence that it had "sufficient, non-discriminatory reasons to seek [the plaintiff's] termination as an employee," and also that it was therefore unnecessary to "decide whether Intel's actions legally amounted to a constructive discharge." Exhibit 1, at 8.

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In particular, the Board found that "Intel demonstrated that Halloum did not integrate himself into Intel's workforce and that he failed to perform up to expectations," and cited several specific examples of his performance deficiencies, including, but not limited to: (1) missing meetings; (2) absences from work; (3) failing to perform the duties expected of a group leader; (4) failing to understand Intel's business operations; (5) not meeting job expectations for his grade; and (6) failing to comprehend Intel's accounting system. Id. As this Court previously held in connection with the administrative law judge's prior decision, the plaintiff is estopped from challenging these quasi-judicial findings. See Order dated March 30, 2005. The plaintiff's contentions that the discovery period has expired, and that the Company's attorney advised the Court that "all discoveries had been concluded" during a pretrial conference on February 6, 2006, are red herrings. The Decision was not issued until January 31, 2006, and it was not received by the Company until February 7, 2006 -- the day after the pretrial conference. The Company disclosed the Decision to the plaintiff promptly thereafter, although he presumably had already received his own copy directly from the Department of Labor by that time. Nor does the plaintiff's contention that the Decision "is appealable and will be appealed" preclude the Court from taking judicial notice of the Decision, let alone from admitting the Decision in evidence: See Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 1988) (discussing the "established rule" that the decision of another tribunal "retains all of its res judicata consequences pending decision of the appeal"); Robi v. Five Platters, Inc., 838 F.2d 318, 327 (9th Cir. 1988) (noting that an appeal "in no way affect[s] the `firmness' of the [decision] . . . for purposes of issue preclusion"). For the foregoing reasons, the Company respectfully requests that the Court deny Plaintiff's Motion in Opposition to Defendant's Supplemental Disclosure

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Statement. RESPECTFULLY SUBMITTED this 9th day of March, 2006. RYLEY, CARLOCK & APPLEWHITE s/ Michael D. Moberly Michael D. Moberly Andrea G. Lisenbee Ryley Carlock & Applewhite One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Defendant/Counterclaimant

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CERTIFICATE OF SERVICE I hereby certify that on March 9, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on March 9, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Ammar Halloum P.O. Box 26662 Tempe, AZ 85285 Plaintiff/Counterdefendant Sawsan Hamad 260 W. Buena Vista Dr. Tempe, Arizona 85284 Counterdefendant

s/ Michael D. Moberly Michael D. Moberly

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