Free Order on Motion in Limine - District Court of Arizona - Arizona

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Case 2:02-cv-02245-EHC Document 136 Filed 02/07/2006 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) ) ) Intel Corporation, ) ) Defendant. ) ) ) ) Intel Corporation, ) ) Counterclaimant, ) ) vs. ) ) Ammar Halloum and Sawsan Hamad, ) ) Counterdefendants. ) ) __________________________________)

Ammar Halloum,

No. CIV 02-2245-PHX-EHC ORDER

Pending before the Court are defendant-counterclaimant's (defendant) Motion in Limine Regarding Evidence of Constructive Discharge (Dkt. 103) and plaintiffcounterdefendant's (plaintiff) Motion in Limine seeking to exclude evidence of other civil lawsuits initiated by the plaintiff and evidence of plaintiff's misdemeanor conviction of fraud (Dkt. 132).

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Defendant's Motion in Limine Defendant Intel Corporation has moved to preclude the plaintiff from offering evidence or argument pertaining to his allegation that he was constructively discharged, including specifically any evidence pertaining to any economic injuries he claims to have suffered as a result of that alleged event. (Dkt. 103). The defendant argues that the plaintiff is estopped from contending that the modification of the Corrective Action Plan on August 19, 2002 was unlawful. The defendant argues that because this Court adopted the

Administrative Law Judge's finding that the defendant would have modified plaintiff's Corrective Action Plan (on August 19, 2002) for legitimate reasons, plaintiff is precluded from presenting any evidence of his constructive discharge at trial. The Court disagrees. Both the Administrative Law Judge's findings and his holdings were narrower in scope than the present proceeding. This Court adopted the Administrative Law Judge's finding that "Intel would have modified Plaintiff's Corrective Action Plan on August 19, 2002 for legitimate business reasons." Order dated March 30, 2005 (Dkt. 91, p. 6). The events that the plaintiff alleges constitute his constructive discharge, however, encompass more than the Defendant's modification of the Corrective Action Plan on August 19, 2002. Therefore, the fact that the Court adopted the finding that the Defendant would have modified its Corrective Action Plan on August 19, 2002 for legitimate reasons does not prevent the plaintiff from producing other evidence regarding the alleged constructive discharge. Moreover, the Administrative Law Judge's holding dealt with violations of the Sarbanes-Oxley Act of 2002­not Title VII of the Civil Rights Act of 1964. As the defendant notes, "constructive discharge 'is not a cause of action in and of itself.'" Defendant's Motion (Dkt. 103, p. 4) (internal citations omitted). The Court's order of March 30, 2005, reads, "Although the ALJ . . . found that Plaintiff was not constructively discharged, this finding was not made in the context of a Title VII claim . . . . Because Plaintiff alleges multiple incidents of discrimination between September 11, 2001 and his resignation on September 3, 2002, [the]

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question [of constructive discharge] is properly left to the trier of fact." Order dated March 30, 2005 (Dkt. 91, p.10). The defendant's motion in limine is denied.

Plaintiff's Motion in Limine The plaintiff argues that the defendant should be prohibited from introducing evidence regarding plaintiff's involvement in other civil lawsuits, and the misdemeanor conviction against plaintiff, on the grounds that the evidence is irrelevant, will result in undue prejudice, confusion to the jury, and be a waste of time under rules 401, 403, and 404 of the Federal Rules of Evidence. The defendant argues that the other civil lawsuits are relevant to plaintiff's claim for damages premised on the contention that he suffered emotional distress as the result of its alleged conduct. "The proponent of [] evidence bears the burden of laying the proper foundation for admission." City of Long Beach v. Standard Oil Co., 46 F.3d 929, 937 (9th Cir. 1995). With respect to plaintiff's prior civil law suits, "the evidence must tend to show something other than a plaintiff's tendency to sue, [it is noted that] the Second Circuit has addressed the propriety of admitting 404(b) evidence of other lawsuits against the litigious or 'claims minded' plaintiff." Gastineau v. Fleet Mortg. Corp., 137 F.3d 490, 496 (7th Cir. 1998)(citing Outley v. City of New York, 837 F.2d 587 (2d Cir.1988)). The admissibility of prior civil lawsuits, without something more, is arguably irrelevant in this case. The defendant argues that plaintiff's misdemeanor conviction for fraud is relevant to the present case. The defendant argues that the conviction is not only relevant, it could very well be dispositive with respect to the defendants counterclaim of fraud against the plaintiff. The plaintiff argues that the conviction is "entirely unrelated" to the matters at issue in this case. The defendant, on the other hand, claims that "the criminal case against the plaintiff involved a prosecution for fraud that arose out of precisely the same events that form the basis for the Company's counterclaims against him for, inter alia, fraud." The doctrine of collateral estoppel prohibits relitigation of an issue of fact or law that has been decided in earlier litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. -3Case 2:02-cv-02245-EHC Document 136 Filed 02/07/2006 Page 3 of 4

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5 (1979). When a civil trial follows criminal proceedings which were based on the same facts, a different cause of action is involved and the doctrine of collateral estoppel rather than that of res judicata must be considered. Neaderland v. C. I. R., 424 F.2d 639, 641 (2d Cir. 1970) (citing 1B J. Moore, Federal Practice PO. 418(1), p. 2701 (2d ed.)); Appling v. State Farm Ins. Co., 340 F.3d 769, 775 (9th Cir. 2003). The issue of the preclusive effect of plaintiff's misdemeanor conviction cannot be determined based on the memoranda submitted by the parties. The motion will be denied without prejudice to reurging if the Plaintiff testifies at trial. See Rule 609, Federal Rules of Evidence. Accordingly, IT IS ORDERED denying defendant's Motion in Limine without prejudice to reurging at trial. IT IS FURTHER ORDERED denying plaintiff's Motion in Limine without prejudice to reurging at trial. DATED this 6th day of February, 2006.

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