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. No. CIV-02-02245-PHX-EHC
DEFENDANT/COUNTERCLAIMANT'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE REGARDING EVIDENCE OF DEFENDANT'S ALLEGED STATE CHARGE AND OTHER CIVIL LAWSUITS

INTEL CORPORATION, Counterclaimant, vs. AMMAR HALLOUM and SAWSAN HAMAD, Counterdefendants.

RESPONSE Defendant/Counterclaimant Intel Corporation ("Intel" or the "Company") hereby responds to Plaintiff's Motion in Limine Regarding Evidence of Defendant's Alleged State Charge and Other Civil Lawsuits ("Plaintiff's Motion"), and requests that the motion be denied for the reasons set forth in the following Memorandum of Points and Authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES The plaintiff requests that the Court exclude "any evidence relating to Plaintiff's criminal misdemeanor conviction or any other civil litigation in which he is a named party." Plaintiff's Motion, at 4. However, evidence pertaining to the plaintiff's criminal conviction and his involvement in other civil lawsuits is clearly relevant and admissible in this action, and the plaintiff's motion should therefore be denied. The plaintiff's request that the Court exclude evidence of his involvement in other civil lawsuits is merely a rehash of the argument he made in a previous motion in limine filed by his prior attorney on February 14, 2005, before her withdrawal from the case. That motion was denied by the Court in an Order issued on July 19, 2005, "without prejudice to any objections at trial." In his present motion, the plaintiff has not even acknowledged the Court's rejection of his prior motion, let alone offered any argument as to why the Court should revisit the issue. Nor has the plaintiff cited, in either of his motions, any cases in support of his assertion that evidence pertaining to his involvement in other civil cases should be excluded. In any event, the evidence at issue is clearly relevant and admissible to rebut the plaintiff's claim for damages premised upon his contention that he suffered emotional distress as the result of the Company's alleged conduct. See Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 495 (7th Cir. 1998) (holding that evidence concerning other lawsuits in which the plaintiff was involved was properly admitted in his Title VII case against his former employer because such evidence "casts doubt on the credibility of [the plaintiff's] claim for damages based on depression caused by the trauma he suffered" while employed by the defendant). As the plaintiff notes, the other evidence he seeks to have excluded involves a criminal prosecution that "resulted in a misdemeanor conviction against

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[him] in 2005." Plaintiff's Motion, at 2. The plaintiff argues that evidence of this conviction is "entirely unrelated" to the matters at issue in this case. Id. at 3. On the contrary, 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. Evidence pertaining to the plaintiff's criminal conviction is also relevant to, and admissible in connection with, the Company's after-acquired evidence defense. Once again, the plaintiff has cited no case law in support of his argument that this evidence should be excluded. This is not altogether surprising, because the pertinent case law confirms that the criminal prosecution, and specifically the plaintiff's conviction, not only are admissible in connection with Intel's counterclaims and afteracquired evidence defense, but in all likelihood dispositive of those matters. See United States v. Rivieccio, 846 F. Supp. 1079, 1084 (E.D.N.Y. 1994) ("The criminal

conviction of . . . fraud charges conclusively establishes the elements of civil common law fraud . . . "); cf. SEC v. Sekhri, 333 F. Supp. 2d 222, 228 n.8 (S.D.N.Y. 2004) ("The plea allocution of a criminal case involving . . . fraud is admissible in a related civil case."). As the Fifth Circuit has explained: [J]udicial estoppel . . . prevent[s] fruitless relitigation of an issue which has already been judicially determined. Furthermore, there is a logical and sound legal trend which holds that a criminal conviction bars litigation of the issue in a civil suit. In view of both of these factors, . . . the [plaintiff's] conviction for . . . fraud precludes [him] from [relitigating] the issue in his civil suit against the . . . company. Breeland v. Security Insurance Co., 421 F.2d 918, 923 (5th Cir. 1969). In view of the forgoing, the plaintiff's request that the Court preclude the Company from offering evidence pertaining to his criminal conviction is frivolous. Because his request that the Court exclude evidence of other civil lawsuits in which he

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is or has been involved is equally lacking in merit (and was previously rejected by the Court), the plaintiff's motion in limine should be denied. RESPECTFULLY SUBMITTED this 18th day of January, 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 January 18, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. I hereby certify that on January 18, 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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