Case 2:12-cv-00981-ROS Document 346 Filed 11/14/14 Page 1 of 13

William R. Jones, Jr., Bar #001481

John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Telephone: (602) 263-1700
Fax: (602) 200-7801
wjones@jshfirm.com
jmasterson@jshfirm.com
jpopolizio@jshfirm.com
jackerman@jshfirm.com

Attorneys for Defendant Joseph M. Arpaio

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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United States of America,

Plaintiff,

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v.

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NO. CV12-00981-PHX-ROS
Defendant Arpaios Response to
United States Motion for Summary
Judgment Re: Issue Preclusion

Maricopa County, Arizona; Maricopa County

Sheriffs Office; and Joseph M. Arpaio, in his
official capacity as Sheriff of Maricopa
County, Arizona,

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Defendants.

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Pursuant to Rule 56, Fed.R.Civ.P., Defendant Arpaio responds and cross

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moves for summary judgment involving the use of offensive non-mutual issue preclusion

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under Counts 1, 3, and 5 of Plaintiffs Complaint.

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jurisdiction and Plaintiff lacks standing to bring discrimination claims under Counts 1, 3,

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and 5 because of the Courts decision in Melendres v. Arpaio, 989 F. Supp. 2d 822 (D.

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Ariz. 2013). Furthermore, even assuming this Court has jurisdiction, given Plaintiffs

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wait and see strategy during Melendres, it would be unfair to permit the use of offensive

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non-mutual issue preclusion in this case. Therefore, this Court should deny Plaintiffs

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Motion for Summary Judgment.

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This Court lacks subject matter

Case 2:12-cv-00981-ROS Document 346 Filed 11/14/14 Page 2 of 13

I.

LAW AND ARGUMENT

A.

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The central issue before this Court in the parties cross-motions for
summary judgment is what effect the Melendres Order has on this case. In Defendants
Motion for Summary Judgment, he asserts that Melendres deprives this Court of subject
matter jurisdiction and Plaintiff of standing, while in Plaintiffs Motion for Summary
Judgment it asserts that Melendres has preclusive effect on the claims set forth in Counts
1,3, and 5 of its Complaint. Fortunately, in Gospel Missions of Am. v. City of Los
Angeles, 328 F.3d 548, 554 (9th Cir. 2003), the Ninth Circuit clearly decided this issue,
holding that before a court can determine if issue preclusion is applicable in a case it
must first determine if it has subject matter jurisdiction over the claims brought by a
plaintiff.

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This Court cannot reach Plaintiffs offensive non-mutual issue

preclusion argument because it lacks subject matter jurisdiction and
Plaintiff lacks standing to1 bring discriminatory traffic stop claims
under Counts 1, 2, 3, and 5.

At issue in Gospel, was whether plaintiff could assert issue preclusion

involving the existence of standing, which was already determined by a prior decision of
the court.

Id.

Gospel Missions is a non-profit religious corporation that provides

assistance to homeless individuals who in turn solicit funds and share some of the
proceeds with Gospel Missions. Id. at 552. In 1992, five of its properties were raided by
the Los Angeles County Sheriffs Department because the Sheriffs Department believed
Gospel Missions might be violating City and County charitable solicitation laws. Id. In
response to the raid, Gospel Missions sued the City and Los Angeles County, challenging
the City and Countys charitable solicitation laws (GMA I). Id. The district court
entered summary judgment in favor of Gospel Missions and enjoined the City and County
from enforcing numerous provisions of their respective laws.

Id.; see also Gospel

Missions of Am. v. Bennett, 951 F.Supp. 1429 (C.D.Cal.1997). The City then amended

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To the extent Plaintiff alleges discriminatory traffic stops under Count 2,

Defendant contends that his subject matter jurisdiction and standing arguments apply.
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the Ordinance in an attempt to comply with the injunctive order. Id.

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Gospel Missions then instituted another action (GMA II) with the
expectation that its members would not be allowed to solicit funds pursuant to the
amended Orginance. Id. The district court in GMA II determined that Gospel Missions
did not have standing to challenge a city ordinances professional fundraiser provisions.
Id. at 553. On appeal, Gospel Missions argued that GMA I, which determined that
plaintiff had standing, precluded the GMA II court from denying plaintiff standing. Id.
Before the Gospel Court would decide whether issue preclusion was permissible, the
Court announced it had to first determine whether plaintiff had standing to challenge the
fundraiser provisions of the amended ordinance:

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GMA I stated there was standing, and Gospel Missions

therefore seeks to bar the City from arguing a lack of standing.
To accept Gospel Missions' argument would raise the
possibility that we lack jurisdiction though issue preclusion
forces us to pretend to exercise it. Yet we cannot blindly
assume we have jurisdiction. A court must always decide for
itself its own jurisdiction. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210
(1998). Just as we would not give precedential effect to a
drive-by jurisdictional determination by our or a higher
court, id. at 91, 118 S.Ct. 1003, we would not give preclusive
effect to GMA I's un-litigated jurisdictional statement.

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Id. at 554. In so doing, the Gospel Court ultimately determined that it lacked standing to

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consider plaintiffs issue preclusion argument. Id. at 555.

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Exactly as in Gospel, before this Court can determine if issue preclusion is

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proper in this case, it must first determine if it has subject matter jurisdiction over

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Plaintiffs discriminatory traffic stop claims. See also Idaho v. Coeur d'Alene Tribe, No.

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2:14-CV-000170-BLW, 2014 WL 4389839, at *8 (D. Idaho Sept. 5, 2014) (citing Gospel

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and holding that when a courts jurisdiction is challenged under res judicata, it must

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determine first if it has jurisdiction); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

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94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)) (Without

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jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare

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the law, and when it ceases to exist, the only function remaining to the court is that of
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announcing the fact and dismissing the cause.); Righthaven LLC v. Hoehn, 716 F.3d
1166, 1172 (9th Cir. 2013) (The Supreme Court has rejected the doctrine of hypothetical
jurisdiction, in which a federal court assumes jurisdiction for the purpose of reaching the
merits, as the practice carries the courts beyond the bounds of authorized judicial action.)
(quotations omitted); Rivera v. R.R. Ret. Bd., 262 F.3d 1005, 1008 (9th Cir. 2001)
(referencing Steel Co. and holding that [t]he Supreme Court has instructed lower courts
to resolve jurisdictional issues before reaching the merits of a case.).

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As extensively set forth in Defendants Motion for Partial Summary

Judgment, Melendres deprives this Court of subject matter jurisdiction over Plaintiffs
claims and Plaintiff lacks standing because: (1) the Melendres Order ensures that any past
alleged discrimination will not continue in the future, making injunctive relief improper;
(2) this Court lacks the ability to redress Plaintiffs claim because the relief requested has
already been granted in Melendres; and (3) significant and widespread changes have
occurred and continue to occur as a result of the Melendres Order, which moots Plaintiffs
claims under Counts 1, 2, 3, and 5. [See Dkt. 345 at p. 2-8] Accordingly, this Court
cannot address Plaintiffs issue preclusion argument because this Court lacks subject
matter jurisdiction and Plaintiff lacks standing to bring its discriminatory traffic claims
under Counts 1, 2, 3, and 5 in the first place.

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B.

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Regarding the merits of Plaintiffs issue preclusion claims, and

notwithstanding the issues involving this Courts subject matter jurisdiction and Plaintiffs
standing, the use of offensive non-mutual issue preclusion would be unfair based on
Plaintiffs wait and see strategy in the Melendres case.

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Plaintiffs use of offensive non-mutual issue preclusion is unfair.

The Supreme Court in Parklane Hoisery Co, Inc. v. Shore, 439 U.S. 322,
331 (1979), granted lower courts broad discretion when deciding whether a party may
use offensive non-mutual issue preclusion. In adopting Parklane, the Ninth Circuit has
articulated the necessary elements of offensive non-mutual issue preclusion:

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(1) there was a full and fair opportunity to litigate the identical
issue in the prior action; (2) the issue was actually litigated in
the prior action; (3) the issue was decided in a final judgment;
and (4) the party against whom issue preclusion is asserted
was a party or in privity with a party to the prior action.

Syverson v. Int'l Bus. Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 2007). Parklane

also emphasized, however, that trial courts also must take into account the potential

shortcomings or indices of unfairness when considering whether to apply offensive non-

mutual issue preclusion, even when the normal test for issue preclusion is met:

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offensive use of collateral estoppel does not promote judicial

economy in the same manner as defensive use does.
Defensive use of collateral estoppel precludes a plaintiff from
litigating identical issues by merely switching adversaries.
Thus defensive collateral estoppel gives a plaintiff a strong
incentive to join all potential defendants in the first action if
possible. Offensive use of collateral estoppel, on the other
hand, creates precisely the opposite incentive. Since a
plaintiff will be able to rely on a previous judgment against a
defendant but will not be bound by that judgment if the
defendant wins, the plaintiff has every incentive to adopt a
wait and see attitude, in the hope that the first action by
another plaintiff will result in a favorable judgment. Thus
offensive use of collateral estoppel will likely increase rather
than decrease the total amount of litigation, since potential
plaintiffs will have everything to gain and nothing to lose by
not intervening in the first action.

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Id. at 329 (quotations and citations omitted) (emphasis added). Of grave concern to the

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Parklane Court was that plaintiffs would abuse offensive issue preclusion by adopting a

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wait and see strategy. Id.; see also Syverson, 472 F.3d at 1079 (adopting Parklanes

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wait and see concern and holding that offensive issue preclusion is improper when the

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plaintiff had the incentive to adopt a wait and see attitude in the hope that the first action

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by another plaintiff would result in a favorable judgment which might then be used

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against the losing defendant.). It is for this reason that courts fiercely disfavor the use of

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offensive non-mutual issue preclusion. See Shaffer v. R.J. Reynolds Tobacco Co., 860 F.

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Supp. 2d 991, 995 (D. Ariz. 2012) (noting that [c]ourts have recognized that where

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offensive nonmutual issue preclusion is being urged, fairness gains special importance,

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and applicability of the doctrine in any given case is detailed, difficult, and potentially

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dangerous.) (emphasis added and quotations omitted).

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Finally, courts following Parklanes wait and see admonition have denied
the use of offensive issue preclusion when a party could have joined in the litigation but
chose not to. See e.g., In re Air Crash Disaster at Stapleton Int'l Airport, Denver, Colo.,
on Nov. 15, 1987, 720 F. Supp. 1505, 1523 (D. Colo. 1989) reversed on other grounds by
Johnson v. Cont'l Airlines Corp., 964 F.2d 1059 (10th Cir. 1992) (holding that the wait
and see bar applied to plaintiffs who filed their complaints prior to or during trial
through counsel who represent several other plaintiffs in this litigation and actively
participated in trial.) (emphasis added); Charles J. Arndt, Inc. v. City of Birmingham, 748
F.2d 1486, 1494-95 (11th Cir. 1984) (affirming denial of offensive issue preclusion where
the record established that Arndt was aware of the ongoing litigation between the City and
Tutwiler Drug Company).

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Plaintiff argues that offensive non-mutual issue preclusion is appropriate in

this case because (1) Arpaio had every incentive to litigate the Melendres lawsuit, (2) the
judgment in Melendres is not inconsistent with any other decision, and (3) that there are
no procedural opportunities available in this case that were not available in the Melendres
case. [Plaintiffs Motion for Summary Judgment (Dkt. 322) at 7:25-28] Even assuming
Plaintiffs unsupported conclusions are true, Defendant still takes issue with Plaintiffs
argument that application of offensive non-mutual issue preclusion would be fair in this
case. Plaintiffs actions in Melendres can only be viewed as the exact wait and see
strategy that Parklane and Syverson condemned. Not only did plaintiff wait to see
the outcome of Melendres, it attempted to sculpt the Melendres litigation itself while
actively resisting becoming a party to it. It would be completely unfair to now permit
Plaintiff to use offensive non-mutual issue preclusion for the same claims already resolved
in Melendres under Counts 1, 3, and 5.

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Plaintiff objected to staying the Melendres proceedings, which

would have allowed it to complete its investigation and join in the
case.

To begin, Plaintiff conjures the impracticability of joinder in the Melendres

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case because the United States completed its investigation in December 2011 and filed
the Complaint [in this case] in May 2012, long before the court ruled in Melendres in May
2013. (Emphasis original). [Dkt. 332 at 8:6-9] In addition, Plaintiff notes that if it had
joined in Melendres it would have done so at a time when discovery in that case was
already completed and the court had ruled on summary judgment. [Id. at 8:16-17]
Finally, Plaintiff falsely argues that joinder would have complicated the litigation because
in addition to asserting claims based on the discriminatory conduct at issue in Melendres,
the United States also seeks relief from three other [allegedly] systemic violations of
federal law: discriminatory language access failures in MCSO jails, a pattern of
unconstitutional retaliation against critics of Defendant Arpaio, and unreasonable
detention practices during worksite raids in violation of the Fourth Amendment.2 [Id. at
8:17-22] Nothing could be further from the truth.

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Beginning in May 2009, recognizing the likelihood that Plaintiff (United

States) would bring claims that would be similar or identical to those in the Melendres
litigation, Defendant Maricopa County asked the Court to grant a Motion to Stay the
proceedings in Melendres pending the outcome of the DOJs investigation of Defendant.3
[See Defendants Statement of Facts (DSOF) 1] Maricopa County argued a stay was

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Plaintiff alleges three systemic violations of federal law not at issue in

Melendres: (1) discriminatory language access failures in MCSO jails, (2) a pattern of
unconstitutional retaliation against critics of Defendant Arpaio, and (3) unreasonable
detention practices during worksite raids in violation of the Fourth Amendment. [Dkt.
322 at 7:19-22] In making this point, Defendant cannot help but note that it appears
Plaintiffs Motion for Summary Judgment concedes that Melendres did address general
traffic enforcement by not including an allegation that general traffic enforcement was one
of the the three systemic violations of federal law not at issue in Melendres.
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Although Defendant Arpaio opposed this Motion, [DSOF 1] whether this Court
should permit issue preclusion based on the wait and see doctrine depends not on
Defendant Arpaios actions in the underlying lawsuit, but on the actions of the party
asserting issue preclusion the United States. See Syverson, 472 F.3d at 1079 (9th Cir.
2007) (holding that offensive issue preclusion focuses on whether the plaintiff had the
incentive to adopt a wait and see attitude in the hope that the first action by another
plaintiff would result in a favorable judgment which might then be used against the losing
defendant.) (emphasis added). Therefore, in deciding whether Plaintiff adopted a wait
and see strategy, it is immaterial what position Defendant Arpaio took during those
proceedings.
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necessary because it would prevent the unnecessary waste of judicial resources:

granting a stay in this case will conserve judicial resources and

avoid duplicative efforts because the Department of Justice is
currently investigating issues central to the plaintiffs claims
allegations that the Sheriff and the MCSO have engaged in
national origin discrimination, discriminatory police practices,
and unconstitutional searches and seizures. The results of the
Justice Departments investigation will inevitably assist the
parties and the Court in structuring their litigation activities in
this case, and could even obviate the need for further litigation
in the event the Justice Department effectively provides the
plaintiffs the relief they are seeking here.

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[Id. at 7-8] Indeed, Maricopa County was prophetic when it warned the Melendres Court
that [t]he Justice Department may even institute its own civil action seeking the same
relief sought in this case a declaratory judgment and injunction . . . [.] [Id. at 8:10-12]
In response, Plaintiff petitioned the Melendres Court to be permitted to file Amicus Curiae
briefing, as well as filing a motion to oppose Maricopa Countys stay request.4 [See
DSOF 2] As is now clear, Plaintiff attempted to evade becoming part of the Melendres
case and was successful so that it could sit on the sidelines and reap any potential
favorable rulings. [DSOF 3] This strategy is obvious because after the denial of the
Motion to Stay, Plaintiff persisted in trying participate in the Melendres litigation without
the risk of being subjected to any preclusive effects.

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2.

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Plaintiff continued to be heavily involved in the Melendres

litigation after convincing the Melendres Court to deny the
Motion to Stay.

Plaintiff continued its wait and see gambit by filing an amicus brief
requesting to join in the Melendres parties depositions of Sheriff Arpaio and the

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Defendant also notes that the complication of adding Plaintiff to the Melendres
litigation during the May 2009 Motion to Stay would have only involved one additional
claim treatment of LEP inmates and not three (worksite operations, LEP, and
retaliation). [Dkt. 322 at 7:19-22] In Plaintiffs March 10, 2009 letter informing MCSO
of its investigation, its focus involved only allegations of discriminatory police practices
and MCSOs failure to provide meaningful access to MCSO services for LEP individuals
in its jails. The March 10, 2009 letter did not address any allegations of retaliation or
allege MCSO had committed improper worksite operations. [DSOF 4] Furthermore, to
the extent Plaintiff complains about the feasibility of joinder, it could have easily joined in
the Melendres issues involving discriminatory traffic enforcement and brought a separate
action involving worksite operations, LEP inmate conditions, and retaliation.
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employees of MCSO just two months after the Court denied the Motion to Stay. [See
DSOF 5] In denying Plaintiffs request, Judge Snow expressed his annoyance with
Plaintiffs incessant attempts to control the Melendres litigation without actually being
involved:

as has already been discussed in previous motions and orders,

this lawsuit is not a vehicle through which the Department of
Justice may conduct its separate investigation . . . .

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[DSOF 6] This warning did not stop Plaintiff, as it continued to file over eighteen (18)
motions throughout the remainder of the Melendres case requesting deposition transcripts,
substituting counsel, filing motions for protective orders, a motion to change venue, and
making various appearances during court proceedings.5 [See DSOF 7]

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3.

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Plaintiff suggested the exact remedy the Melendres Court entered

in its Permanent Injunction Order.

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Plaintiffs filings culminated in a Statement of Interest Motion where

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Plaintiff actually suggested the injunctive relief the Melendres Court should order after

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finding Defendant discriminated against Latinos during traffic stops. [DSOF 8]

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Furthermore, Plaintiff referenced its investigation and Complaint filed in this case against

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Defendant Arpaio and invited the Melendres Court to review a 128 page proposed

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settlement agreement from February 2012, which Plaintiff avowed would be effective in

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remedying Defendants alleged unconstitutional violations in this case. [Id.] Defendant

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can only conclude that Plaintiff was successful, since the Melendres permanent injunction

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Order involved all but one ground of relief suggested by Plaintiff:6

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DOJs Statement of Interest Suggestions

Melendres Injunctive Order
[DSOF 9]
[DSOF 10]
(1) An independent monitor to assess and (1) An independent monitor to screen
report on MCSOs compliance with the MCSO for discriminatory behavior;

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Counsel for Plaintiff in this case, Edward G. Casper, appeared for the United States
in Melendres and was also the signatory Counsel for the DOJs Statement of Interest
filing. [DSOF 7]
6
The only ground requested by the DOJ not granted in the Melendres injunctive
Order involved Provisions for language assistance in policing operations, particularly
among those subjected to stops. [DSOF 9]
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remedial measures ordered by the Court;

[Melendres Dkt. 606 at 14-17; 119-144]

(2) Reformed policies and procedures to

ensure bias-free policing and practices that
are consistent with Fourth Amendment
protections;

(2) Reform of Defendants policies and

procedures to ensure bias free policing,
traffic enforcement, detentions and arrests,
and immigration laws; [Id. at 21-34]

(3) Adequate training to ensure compliance (3) Adequate training to ensure compliance
of all MCSO personnel;
with reformed policies; [Id. at 41-51]
(4) Reforms to ensure appropriate
supervision of MCSO personnel, including
the deployment of sufficient numbers of
qualified MCSO supervisors in the field to
ensure deputies compliance;

(4) Reforms on the number of supervising

officers in the field, including the
requirement that all patrol Deputies be
assigned a single, consistent, clearly
identified supervisor; [Id. at 82-101]

(5) Requirements to collect data sufficient

to measure the effect of any racial bias on
MCSOs traffic enforcement, data relating
to such factors as the perceived race of each
person stopped, the reasons for each stop,
and the time and duration for each stop;

(5) Requirements to collect and review data

measuring Defendants traffic enforcement;
including the Deputys subjective perceived
race, ethnicity, and gender of the driver, as
well as the reason, time, and duration of the
stop. [Id. at 9-13; 54-71]

(6) Public meetings on MCSOs reform

initiatives, and the ability to adopt or
modify measures that take into account
public feedback;

(6) Public meetings on Defendants reform

initiatives which include the ability to adopt
or modify measures that take into account
public feedback; [Id. at 107-114]7

(7) Sustained community outreach so that (7) Creation of a community advisory board
MCSO can hear and appropriately respond to facilitate regular dialogue with the
to community concerns;
community; [Id. at 115-118]
(8) The monitors use of performance (8) Requirement that the independent
metrics to measure MCSOs progress in monitor have access to traffic enforcement
implementing reforms;
data collected; [Id. at 59, 145-150]
(9)
Appropriate
accountability
and
oversight measures within MCSO, such as
an early identification system to identify
and respond to potentially problematic
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(9)
Implementation
of
an
early
identification system to identify and
respond
to
potentially
problematic
behaviors as early as possible; [Id. at 72-

Although Defendant is no longer required to do so under Court order, he continues

to support the monitor logistically and financially by holding these meetings. [See
Melendres Dkt. 670]
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behaviors as early as possible; and policies

and procedures that encourage the reporting
of potential misconduct, ensure that such
reports are appropriately investigated, and
that any misconduct is appropriately
addressed; and

81]
Development of Policies and
procedures that encourage the reporting of
potential misconduct and to ensure that any
misconduct is appropriately investigated
and that any misconduct is appropriately
addressed; [Id. at 102-106]

(10) Reporting requirements to keep

apprised the monitor, the parties, the Court,
and the community on MCSOs reform
efforts.

(10) Reporting requirements to keep

apprised the monitor, the parties, the Court,
and the community on Defendants reform
efforts. [Id. at 9-13]

4.

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Conclusion

This is the quintessential case in which a plaintiff has adopted an execrated

wait and see strategy. To reward Plaintiff for its calculated, strategic decision to lie in
wait would be abhorrent. It would be completely inequitable to permit Plaintiff to use
offensive issue preclusion when on the one hand it purposely evaded the preclusive effects
of joining the parties in the Melendres case, while on the other, sought to bolster this
action against Defendant Arpaio by (1) attempting to join in the Depositions of the
Melendres parties, (2) making appearances and filing a variety of motions during pre and
post-trial litigation, and (3) ultimately influencing the scope of the injunctive relief the
Melendres Court ordered against Defendant which now forms the very basis for
Plaintiffs issue preclusion arguments. While Plaintiff attempts to lead this Court astray
by pointing to the fact that the United States completed its investigation in December
2011, filed its Complaint in May 2012 and that Melendres was decided in May 2013,
Plaintiff cannot explain away its actions beginning in 2009 and extending all the way
through the Melendres litigation.8 Neither can it explain why it did not join in the
8

Regardless of whether it would have been feasible for Plaintiff to join in the
Melendres litigation after the conclusion of its investigation in December 2011, the wait
and see doctrine looks to the entirety of a partys actions to determine if offensive nonmutual issue preclusion would be fair and not to the feasibility of joinder. See Syverson,
472 F.3d at 1079 (9th Cir. 2007) (holding that offensive issue preclusion is improper when
the plaintiff had the incentive to adopt a wait and see attitude in the hope that the first
action by another plaintiff would result in a favorable judgment which might then be used
against the losing defendant.); In re Air Crash, 720 F.Supp. at 1053 (holding that
plaintiffs who filed their complaints prior to or during trial and actively participated in
trial, could not use the results of that trial for offensive issue preclusion purposes in a
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Melendres litigation for the very issues Plaintiff now seeks to resolve using issue
preclusion. Plaintiffs tactics were not ignored by the Melendres Court, [DSOF 6] and
should not be ignored in this case. Consequentially, given Plaintiffs painfully obvious
wait and see strategy, it would be unfair for this Court to permit Plaintiff to use
offensive non-mutual issue preclusion in this case.
II.

CONCLUSION
For these reasons, this Court lacks subject matter jurisdiction and Plaintiff

lacks standing to reach Plaintiffs issue preclusion argument and even if it did not, given
Plaintiffs wait and see gambit, it would be unfair for this Court to permit Plaintiff to
use offensive non-mutual issue preclusion in this case. Accordingly, Defendant Arpaio
respectfully requests this Court to deny Plaintiffs Motion for Summary Judgment.

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DATED this 14th day of November, 2014.

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JONES, SKELTON & HOCHULI, P.L.C.

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By s/ Joseph J. Poplizio
William R. Jones, Jr.
John T. Masterson
Joseph J. Popolizio
Justin M. Ackerman
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Defendant Joseph M. Arpaio

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separate action). Furthermore, as previously detailed, it was feasible for Plaintiff to join
in Melendres, it resisted doing so, was then heavily involved during pre and post-trial
litigation, and is now attempting to use the Melendres decision against Defendant Arpaio.
Accordingly it is categorically unfair to permit the use of issue preclusion by Plaintiff in
this case.
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Case 2:12-cv-00981-ROS Document 346 Filed 11/14/14 Page 13 of 13

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CERTIFICATE OF SERVICE

I hereby certify that on this 14th day November, 2014, I caused the foregoing document to

be filed electronically with the Clerk of Court through the CM/ECF System for filing and

served on counsel of record via the Courts CM/ECF system:

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s/ Mance Carroll

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