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Carrie M. Francis (020453)

Stefan M. Palys (024752) 

Michael Vincent (029864)

STINSON LLP

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584 

Tel: (602) 279-1600 

Fax: (602) 240-6925 

Email: carrie.francis@stinson.com

stefan.palys@stinson.com

michael.vincent@stinson.com 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Jeremy Thacker, No. 2:18-cv-00063-PHX-DGC

DEFENDANTS’ RESPONSE TO 

PLAINTIFF’S MOTION IN LIMINE 

NO. 1 – UNTIMELY AFTER 

ACQUIRED EVIDENCE 

Plaintiff,

v.

GPS Insight, LLC; Robert J. Donat, 

Individually and as Trustee of The 

Robert Donat Living Trust Dated April 

19, 2017, 

Defendants.

The Court previously resolved this issue, and should deny Plaintiff’s motion as an 

untimely motion to reconsider. Compare Doc. 151 at 20, § B(1) (8/14/19 order denying 

Plaintiff’s motion to strike the after-acquired evidence defense based on an alleged failure 

to disclose) with LRCiv 7.2(g) (motion to reconsider must be filed within 14 days of order 

it challenges). Plaintiff previously filed a Motion to Strike Defendants’ Untimely, 

Previously Undisclosed and Insufficiently Pled After-Acquired Evidence Defense (Doc. 

111, the “Motion”). In the Motion, Plaintiff challenged, inter alia, the same exhibits that 

are now the subject of the motion in limine. Compare Motion in Limine (Doc. 173 at 1:28 

(citing Doc. 112 at Exs. 25 and 26 and stating “the objectionable documents are subexhibits thereto”)) and Reply in Support of the Motion to Strike (Doc. 120 at 9:4-
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describing the same exhibits) with Trial Exs. 262-264 (same documents).1 Defendants’ 

response fully addressed these arguments. (Doc. 116). 

The Court rejected the arguments Plaintiff now raises. (Doc. 151) It reasoned that 

the Motion was itself untimely. (Doc. 151 at 21:4-11) It further reasoned that the defense 

“is well-established and commonly argued in wrongful terminations cases, specifically 

with respect to Title VII claims like those Plaintiff raised” so the “arguments could not 

reasonably come as a surprise to Plaintiff or prejudice him, especially given the record 

discussed [in the remainder of the order].” (Doc. 151 at 21:12-23) Note: Defendants are 

no longer seeking to use this evidence in the Title VII context as those claims have been 

dismissed. But rather, this same evidence will be used by Defendants to rebut Plaintiff's 

required showing concerning his remaining tortious interference claim that his 

employment with GPSI would continue absent the alleged interference because he would 

have been fired over this evidence. (Doc. 171-1 at 6-7) 

Plaintiff filed a motion to reconsider the portion of Doc. 151 that granted 

Defendants summary judgment on his FCRA and Title VII claims. (Docs. 153 and 162) 

(motion to reconsider and order denying same). But Plaintiff never moved for 

reconsideration of the Court’s ruling concerning the Motion. The time to do so has 

passed, and the Court should therefore deny the motion in limine for this reason – as it 

has had to do with Plaintiff’s other attempts to get multiple bites at the apple. See, e.g., 

(Doc. 155 at ¶ 3) (rejecting an argument Plaintiff re-raised after it was resolved by Judge 

Humetewa, noting “Plaintiff did not file a timely motion to reconsider, and has provided 

no basis for the Court to reconsider her ruling now.”). If the Court reaches the merits, it 

should deny the motion in limine for all of the reasons Defendants previously advanced 

in response to the same arguments. (Doc. 116) 

 

1

 Ironically, among the documents Plaintiff faults Defendants for not producing is an 

email Plaintiff himself sent from his personal email account. (Tr. Ex. 264/Doc. 112-3) 
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RESPECTFULLY SUBMITTED this 5th day of December, 2019. 

 STINSON LLP 

By: /s/ Stefan M. Palys 

 Carrie M. Francis

Stefan M. Palys 

Michael Vincent 

1850 North Central Avenue, Suite 2100 

Phoenix, Arizona 85004-4584

 

SCHNEIDER & ONOFRY, PC

By: /s/ Timothy B. O’Connor [with permission]

 Timothy B. O’Connor

365 East Coronado Road 

Phoenix, Arizona 85004

 

Attorneys for Defendants
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CERTIFICATE OF SERVICE 

I hereby certify that on December 5, 2019, I caused the foregoing document to be 

filed electronically with the Clerk of Court through ECF; and that ECF will send an 

e-notice of the electronic filing to: 

Joshua W. Carden 

JOSHUA CARDEN LAW FIRM, P.C. 

16427 North Scottsdale Road, Suite 410 

Scottsdale, AZ 85254 

joshua@cardenlawfirm.com 

Attorney for Plaintiff 

Timothy B. O’Connor, Esq. 

SCHNEIDER & ONOFRY, P.C. 

365 East Coronado Road 

Phoenix, Arizona 85004 

toconnor@soarizonalaw.com

Attorneys for Defendant Robert Donat 

I hereby certify that on December 5, 2019, a courtesy copy will be e-mailed to: 

Judge David G. Campbell 

United States District Court 

Sandra Day O’Connor U.S. Courthouse, Suite 623 

401 West Washington Street, SPC 58 

Phoenix, Arizona 85003-2161 

/s/ Linda Holder